DICTA.August 2018 by Knoxville Bar Association

DICTA

August 2018

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

President Elect Wynne du Mariau Caffey-Knight

Treasurer Hanson R. Tipton

Immediate Past President Amanda M. Busby

Secretary Cheryl G. Rice

KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis

Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter

M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe

Our Bar is Alive and Well

Recent Changes in the Knox County Criminal and Fourth Circuit Court Clerk’s Office

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Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator

Volume 46, Issue 7

Dicta

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho Matthew R. Lyon

Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. August 2018

Hello My Name Is

Intern Experien

Legal Update

Currier v. Virginia: Revisiting Issue Preclusion in the Criminal Context

Management Counsel: Law Practice 101

DICTA

Schooled in Ethics

The Character and Fitness Requirement for Admission to the Bar: In re Simmons

WISDOM

6 Tammy Sharpe CLE & Sections Coordinator

Judicial News

Shhh? Sexual Harassment Settlements May No Longer Be Deductible

Marsha S. Watson Executive Director

President’s Message

The Knoxville Bar Association Staff

To Bake or not to Bake? Masterpiece Cakeshop and the Tension between Non-Discrimination and Freedom

CRITICAL FOCUS

5 President Keith H. Burroughs

August 2018

Around The Bar

To Palau and Back: KBA Welcomes Hon. Ashby Pate to Supreme Court Dinner

Key Lime Pie, Part II

Solitude

Deborah Buchholz- Windows of Many Colors

Tennessee Rule Of Civil Procedure 6.01 And Statutes Of Limitation

Fill Your Time with Value

Aibo - Sony Robotic Dog

A review of Sheryl Sandberg’s Lean In: Women, Work, and the Will to Lead and Option B: Facing Adversity, Building Resilience, and Finding Joy

8 10 15 18

Outside My Office Window Time Out

Lawyer Hobbies

Legal Myth Breakers

19 Of Thermometers and Thermostats Look for the Loophole 20 Life & Law in Harmony 24 25

26 27

Bill & Phil’s Gadget of the Month Well Read

Your Monthly Constitutional

Barbara Johns Day

Long Winded

Politics As Unusual

Barrister Bites

Bacon Makes Everything Better

COMMON GROUND

4 12 14 23 29 30 31

Section Notices/Event Calendar Clinically Speaking Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word

event calendar

EVENT CALENDAR & SECTION NOTICES

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section will be planning regular CLE throughout the year. Save the date for the Annual ADR extended CLE program on September 14, 2018. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. To have your name added to the section list, please contact the KBA office at 522-6522. Join the Bankruptcy section for the “Inaugural Celebration of the Pro Bono Debt Relief Clinic” on August 13. The celebration will be held from 3:00 p.m. - 4:30 p.m. on the Fourth Floor, Howard H. Baker Jr. United States Courthouse. If you have program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the Annual Corporate Counsel Update CLE on August 23, 2018 at Chesapeake’s west location. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. Join the Criminal Justice section for a CLE entitled “Complying with Padilla: When “Guilty” Means “Get” Out” on August 20. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law section for a CLE entitled “Inside the EEOC’s Strategic Enforcement Plan” on August 15. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. Join the Section for a CLE entitled “Tennessee Juvenile Court Practice for Beginners Part Deux” on August 24. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. Join the New Lawyers Section for a CLE entitled “Behind the Clerk’s Counter: Tips for Interacting with Court Clerks: Local Rules & Practices” on July 30. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, September 5, 2018 at Calhoun’s on the River. The program title is “The 2018 Volunteers: A Football Preview” and will feature Timothy A. Priest, Pryor, Priest, Harber, Floyd & Coffey. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. Please indicate your choice of Grilled Salmon or Barbeque Chicken. Register online by clicking September 5 in the Event Calendar at www.knoxbar. org. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioners & Small Firm section for a CLE entitled “Get Up to Date: New Indigent Representation Payment System – ACAP” on August 16 and a CLE on “A Clean Slate: Expungement Law for the Non-Criminal Lawyer” on August 30. To have your name added to the section list, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

DICTA

August

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6 ADR Section CLE 7 Functions Committee Meeting 8 Veterans Legal Advice Clinic 8 Barristers Meeting 9 Lunch & Learn 9 Judicial Committee 13 Debt Relief Celebration 14 Professionalism Committee Meeting 15 Employment Law Section CLE 15 Board of Governors 16 Solo & Small Firm Section CLE 20 Criminal Justice Section CLE 20 Diversity in the Profession Committee Meeting 23 Corporate Counsel Section CLE 23 Volunteer Breakfast – New Lawyers Section 24 Juvenile Court Section CLE 30 Solo & Small Firm Section CLE

September n n n n n n n n n n n n n n n n n n n n n n

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Law Office Tech Committee Meeting Senior Section Supreme Court Dinner In Chambers CLE TN Faith & Justice Legal Advice Clinic Professionalism Committee Meeting Access to Justice Committee Meeting Veterans Legal Advice Clinic Memorials Committee Meeting Barristers Meeting Judicial Committee Meeting Lunch & Learn ADR Extended CLE Diversity in the Profession Committee Meeting Barristers CLE Board of Governors Meeting New Lawyers Section CLE CLE Committee Meeting Diversity Program Volunteer Breakfast Extended Social Media CLE Volunteer Breakfast

Mark Your Calendar Supreme Court Dinner September 5, 2018 August 2018

PRESIDENT’S MESSAGE By: Keith H. Burroughs

Egerton, McAfee, Armistead & Davis. P.C.

OUR BAR IS ALIVE AND WELL The activities, programs and services of the KBA have continued in full swing since the beginning of this year. I am just past half way through my term as President, and I can honestly say the experience of serving in this role has been as enjoyable and rewarding as my predecessors represented it would be. As President, I get to regularly participate in and observe the outstanding work of many active Committees and Sections as they meet and address timely issues. Their work and the programs that are an outgrowth of their efforts are in large part why our Bar is so vibrant and healthy. The following is a snapshot of just a few of the activities of our Bar this year. Our April Law Practice Today Expo welcomed 313 total attendees participating in some portion or all of the options orchestrated by our Law Office Technology and Management Committee, Co-Chaired by Robyn Askew and Stephen Ross Johnson. The day and a half of programming was superior and insightful again this year. The Judicial Roundtable Luncheon featuring speaker Hallerin Hilton Hill was absolutely fantastic and motivational. Many in attendance commented that they could listen to him speak for hours, as did I. Our vendors were extremely pleased with the level of participation by so many members of our bench and bar. Our Expo has become the benchmark for other bar associations. Over the past year, quarterly Pro Bono Debt Relief Legal Clinics have been held under the leadership of Judge Suzanne Bauknight and Co-Chairs of the Bankruptcy Section, Tom Dickenson and Greg Logue. These clinics have been well-received and appreciated by the preregistered and screened participants who receive advice from volunteer attorneys to assist them with debt relief needs. In recognition of the success of this new initiative, an inaugural Pro Bono Debt Relief Clinic Celebration will be held on August 13 at 3:00 p.m. at the Federal Courthouse to present appreciation certificates to recognize volunteer attorneys who participated in the clinics with a reception to follow. All members of the KBA are invited to attend. Recently, I participated in the monthly Publications Committee meeting, Co-Chaired by Melissa Carrasco, Chris McCarty and Cathy Shuck. I was amazed at the accomplishments of this Committee month after month to identify key issues to be addressed in the monthly DICTA published 11 times per year. The Committee identifies topics and recruits authors to write on each topic as well as coordinate with our members who regularly contribute to specialty articles. After that, the Committee makes editorial assignments, reviews every article, organizes the issue for publication, and starts all over again the following month. Few bar associations our size are blessed to have a group of volunteer attorneys who consistently produce such a high quality and professional monthly publication. Another group that is called upon almost monthly to consider and make recommendations to the Board of Governors is the Professionalism Committee. In a year that has seen an unprecedented number of new rules proposed by the Tennessee Supreme Court to which the local bar associations, other practitioner groups and individual lawyers are invited to comment, this Committee, under the leadership of Co-Chairs Chancellor John F. Weaver and Garry Ferraris, has worked tirelessly to August 2018

review, research, study, deliberate, and compile written recommendations to the Board of Governors of action that should be considered, all often under short time deadlines. Hats off to our Professionalism Committee for its dedicated service. The Diversity in the Profession Committee, led by Co-Chairs Judge Deborah Stevens and Amanda Morris, is another Committee that has met monthly for most of the year designing multiple initiatives to promote diversity and inclusion in our Bar to achieve a higher retention of a growing diverse bar. This Committee has developed a diversity program and reception for September 25. The speaker and facilitator for that program is Memphis native Vicki Clark, who will speak on the topic of Diversity and Inclusion - A Call to Action: From Awareness to Commitment. I heard Vicki speak at an ABA Bar Leaders Institute in Chicago in the Spring of 2017, and she is nothing short of remarkable. I hope you will mark your calendar to attend this entertaining and thought-provoking program and the reception following the program. Again this year we plan to have a Buddy Match Program with this event, where a practicing attorney is paired with a minority law student to meet before the day of the event to get to know one another. At the reception, you will serve to introduce your Buddy to other attorneys and judges in attendance. Volunteer as a Buddy by clicking September 25 on the event calendar at www.knoxbar.org. Lastly, I encourage our members and guests to attend the KBA Annual Tennessee Supreme Court Dinner on September 5, to gather as colleagues in the profession of law and celebrate our Tennessee Supreme Court. Our keynote speaker is Ashby Pate, former Associate Justice of the Supreme Court of Palau and now in private practice in Birmingham, Alabama. His heart wrenching story of the highs and lows along his career path to becoming a lawyer is both interesting and inspiring. The KBA is such a wonderful and vibrant organization because of all of you who work so hard to make it relevant to our lives as individuals and practitioners and bring value to our members in so many ways. For that, I say “Thank you.”

Looking for Office Space Move-In Ready Internet and Utilities included GREAT LOCATION ON BROADWAY BESIDE THE CHOPHOUSE 865-531-9165

DICTA

AROUND THE BAR By: Angelia M. Nystrom, JD, LLM Executive Director of Specialty Programs Office of Institutional Advancement, University of Tennessee Institute of Agriculture

TO PALAU AND BACK: KBA WELCOMES HON. ASHBY PATE TO SUPREME COURT DINNER KBA Supreme Court Dinner speaker, the Hon. R. Ashby Pate, may have one of the most interesting resumes of any lawyer practicing in the nation. While most of us who have entered the practice of law have gone from undergraduate studies, to law school, to a traditional legal job, Pate’s journey has been a bit more “non-traditional.” As an undergraduate at the Colorado University-Boulder, Pate found himself in a class taught by anthropology professor Dennis Van Gerven, who often quoted the late writer Kurt Vonnegut on the idea of “skylarking,” which Vonnegut defined as an “intolerable lack of seriousness.” “Van Gerven advised us to be willing not to adhere to any specific career path when we graduated,” recalls Pate. “He said, ‘Skylark for a while.’” And that is exactly what Pate did. Pate, who studied English, was also an accomplished musician. Following graduation, he toured regionally in the Southeastern United States in two different bands (including one named Wiseblood after a favorite novella by Flannery O’Connor), releasing two albums of original music. Ashby is also the author of a children’s book, titled “Sweet Dreams Palau,” published by the Etpison Museum. As fate would have it though, Pate, a true Renaissance man, found himself in law school at Samford University’s Cumberland School of Law. There, he served as Editorin-Chief of the Law Review. He went on to earn an L.L.M. in International Commercial and Business Law from the University of East Anglia in Norwich, England, where he graduated first in his class and was awarded the Sir Roy Goode Prize in international law. After graduation from law school, Pate secured a job as judicial clerk to United States District Court Judge U.W. Clemon, one of Alabama’s Civil Rights pioneers. While clerking, he noticed a posting for an internship in Palau. It was another opportunity to “skylark”—another opportunity to take the road less-traveled. For those unfamiliar, Palau is an island country located in the western Pacific Ocean now known for its incredible beauty and remarkable scuba diving. During World War II, however, skirmishes, including the major Battle of Peleliu, were fought between American and Japanese troops as a part of the Mariana and Palau Islands campaign. At the end of the war, Palau (along with other islands in the region) was made a part of the United States-governed Trust Territory of the Pacific Islands. The islands gained full sovereignty in 1994 under a Compact of Free Association. The United States continues to provide defense, funding and access to social services. Because the island is so small and sparsely populated, Palau often relies on lawyers and judges from the U.S. for their expertise and lack of personal connection to participants in court proceedings. When Pate arrived in Palau for the clerkship, he worked as senior court counsel for the republic and helped draft legislation that eventually established Palau’s first jury trial system, after the Paulauan people voted to do so. His responsibilities ranged from drafting jury trial rules and procedures to discussing the best placement of a jury box in a courtroom. He also authored Palau’s first jury trial rules and juror handbook. When his internship ended, Pate returned to private practice

at Lightfoot, Franklin & White in Alabama. However, when Palau’s American member of the Supreme Court stepped down in 2012, Ashby Pate became a leading candidate for the position. Although he was only 34 years old, the President of Palau, Johnson Toribiong, called to offer him the job in early 2013. Once on the bench, Pate quickly became known for his keen intellect and probing questions. During his tenure on the Supreme Court of Palau, he presided over several major cases, including the Aimeliik State chief ’s title dispute, as well as a lawsuit against sitting Vice President Antonio Bells. He also gained notoriety for an order granting a writ of habeas corpus in In Re Angelino, which condemned the solitary confinement conditions in Palau’s only correctional facility. The issuance garnered attention in the Asia-Pacific community and among noted international human rights advocates as an “impressive national court application of international human rights norms.” After three years on the bench, the beloved jurist resigned his post to return to his roots in Alabama. He rejoined the Lightfoot firm in Birmingham in 2016. Since his return to private practice, Pate has focused his practice on international disputes, appellate work, and commercial and medical device litigation. He has also resumed his role as an advocate in some of the most important, and sometimes controversial, matters that his firm handles. Most recently, he was appointed co-prosecutor in the widely-publicized judicial ethics trial of Alabama’s “Ten Commandments” judge, Chief Justice Roy Moore. Pate delivered closing arguments in the trial, arguing that a January 6, 2016 Administrative Order issued by the Chief Justice constituted defiance of the U.S. Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. In a unanimous verdict, the Alabama Court of the Judiciary suspended the Chief Justice from office for the remainder of his elected term, without pay. Pate’s career has been marked by leadership in the profession and a dedication to giving back. He is one of only 50 lawyers and judges in Alabama currently serving on the American Law Institute, where he contributes to projects including The Restatement (Fourth) Foreign Relations Law of the United States, The Restatement (Third) The U.S. Law of International Commercial Arbitration, and The Restatement (Third) Torts: Liability for Economic Harm, and other projects published by that prestigious body. He was also chosen as a “Top 40 Under 40.” Additionally, he has been invited to speak to organizations across the country, including giving the keynote address, alongside Justice Anthony Kennedy of the United States Supreme Court, at the Ninth Circuit Court of Appeals’ Law Clerk Orientation. He was also the featured speaker at the 2016 American College of Trial Lawyers’ meeting in Maui, where he spoke on the power of the human connection and the unique power that lawyers and judges have to create meaningful human connections in this world. Truly, Hon. Ashby Pate is somewhat of a Renaissance man, and his insight into the unique abilities of lawyers and judges to “be the light” in a world of darkness is inspiring. Please join the KBA in welcoming Justice Pate by attending the Supreme Court Dinner on September 5. You will be glad that you did.

DICTA

August 2018

JUDICIAL NEWS By: Patti Jane Lay Lay and Baugh Law

RECENT CHANGES IN THE KNOX COUNTY CRIMINAL AND FOURTH CIRCUIT COURT CLERK’S OFFICE: NEWS FROM MIKE HAMMOND According to Knox County Criminal and Fourth Circuit Court Clerk, Mike Hammond, recent changes have occurred in the clerk’s offices with more changes on the horizon. The first change is the installation of audio and video recordings of all court proceedings in the Fourth Circuit Court. Beginning in April of this year, technology was installed in the clerk’s office and the courtroom to allow Judge Gregory McMillan to prepare a video recording of the court’s proceedings. In order to insure that your proceeding is being recorded, it is necessary to confirm with Judge McMillan prior to the start of the hearing that the video recording is being made. The judge controls the operation of the video recording. The CD of the hearing can be purchased at the clerk’s office the day of the hearing for $50.00, or if purchased after the day of the hearing the cost is $100.00. According to the Clerk of the Court of Appeals, Eastern Division, the Tennessee Supreme Court has approved the CD recording of the hearing as an official transcript for purposes of an appeal. No typed transcript of the hearing is required to be filed, only the official CD from the Fourth Circuit Court Clerk’s office. Recordings of hearings in General Sessions Court criminal proceedings have been available in the General Sessions Court Clerk’s office for several years at a nominal cost. However, these recordings are audio only. The biggest undertaking for the Clerk of the Fourth Circuit Court has been to scan all filings in the Fourth Circuit Court. Since the scanning process began in November 2017, over 75,000 documents have been scanned after a redaction process that eliminates all personal data from the document such as social security numbers. The Knox County Commission has allocated money to create a portal for the bar to have access to these records online so that these documents can be accessed electronically from any location. The portal is expected to go live in 3-6 months. A few local attorneys have agreed to serve as “guinea pigs” and test the system to get the “bugs” worked out prior to the live launch through the portal. Similarly, the Clerk’s office for the General Sessions Court, Criminal Division, will also be scanning all filings in the criminal courts. It is expected that the members of the bar will have access to those documents by August of 2019. The access will exclude media and the general public. The present Judicial Information Management System, commonly referred to as “JIMS” is undergoing a major redesign in a project expected to take two years. The project began six months ago, and the clerk’s office will be talking to judges, attorneys, district attorneys and public defenders to gain input into the new system. The major difference in the present system and the new system will be the linking of the financial aspects of the case with the factual and procedural aspects of the case. So, when you access a case you can get all the information at one place as to what court costs and fines are and how much has been paid along with the description of the charges, parties, judge and witnesses involved in the case and the final disposition of the charges. The final rollout of the new system will take place in approximately January of 2020. Hammond announced that the Supreme Court’s Access to Justice Commission has authorized and funded the placing of a self-service kiosk in the Knox County City-County Building that will provide information to the public on how to file civil proceedings such as August 2018

divorce, custody, orders of protection, child support, landlord tenant actions and other useful information for pro se litigants. The money for the kiosk grants came from both the Administrative Office of the Court’s technology fund and from excess funding collected as a part of the Supreme Court’s continuing legal education efforts. The kiosks will supply needed information to unrepresented litigants which is necessitated because neither the clerk’s office nor the judges can give legal advice to unrepresented individuals. In criminal proceedings, defendants are appointed counsel. However, in civil litigation, attorneys are not appointed to assist litigants who cannot afford an attorney. These kiosks will supply needed information for the unrepresented civil litigant. The information provided by the kiosk has been prepared and supplied by the Access to Justice Commission under the auspices of the Tennessee Supreme Court and the Administrative Offices of the Courts. Knox County is one of 8 counties in the state to have been awarded the kiosk grant. The other counties in the state receiving kiosks are Anderson County, Blount County, Dickson County, Hamilton County, Hawkins County, Shelby County and Sullivan County. Two more counties will receive a kiosk grant at a later date. The kiosk will be in place in the courthouse this fall, so be on the lookout for it. To further encourage access to the courts, the Fourth Circuit Court Clerk’s Office has recently affiliated with an interpreter service known as the “Language Line.” The interpreter service is available to the clerk’s office on an as needed basis and provides interpreter services for 240 different languages. The clerk is able to put the person needing interpreter services on a speaker phone, and the service translates the conversation with the clerk. It is a free service to the public and is available at the clerk’s office anytime that the clerk’s office is open. Finally, I asked Mike Hammond when we could expect electronic filing in the Fourth Circuit Court. His answer was “within a year.” He is in the process of meeting with vendors to discuss proposals for implementing electronic filing. With respect to the changes that are in process, Hammond encourages input from the bar and judiciary on ideas to improve the operation of the clerk’s offices for the Criminal and Fourth Circuit Courts. He can be reached at mike.hammond@ knoxcounty.org.

DICTA

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com

KEY LIME PIE, PART II My original column in this periodical was about Judy Ackermann’s love of Key Lime pie after being diagnosed with Alzheimer’s. “JuJu” is my mother-in-law. The essay contained some moments of levity that accompany the horrid disease and some of the quintessential and obvious elements of a personality so sweet that they could not be dulled by the disease. My essays have included observations of the remarkable Ackermann family and their unwavering love and care for their matriarch. It is on display every day of the week and during the annual Ackermann beach trip. This past week was “The Beach Trip” as it has come to be known within the family. It was the first time without JuJu. The disease is winning. The trip started almost 20 years ago with Judy, her three daughters, and her grandchildren. It evolved into adding her son Andy and the spouses. For the past 16 years we have traveled in July to a place alongside a vast body of water to celebrate the legacy of Judy’s love. As babies turn to teenagers and teens to adults, the disease marches on. Time is cruel and powerful enough. It doesn’t need this disease, a knife if you will, which twists and injures and has progressed since diagnosed several years ago. It forces difficult decisions - When to take the car keys, when to move her to assisted living, and finally, the cruelest blow - when to deprive her of The Beach Trip, thereby depriving us of her on what was her favorite week of the year. For her four children, JuJu is an everyday part of their lives. Doctor’s appointments, walks, getting her nails done, family gatherings and church. It is never ending. They dutifully and with an abundance of love carry on with the care of their mother though she doesn’t comprehend or have the ability to appreciate their sacrifices and love, and if she did, would have nothing to do with the intrusion into their lives. Rarely does a day pass without a visit from her children. She is confused, her gait is diminished and she cannot tell you what day it is. She now often doesn’t recognize her grandchildren. We are slowly being deprived of her. This past week, the knife twisted as we spent our days on the beach without her. The decision was debated over the past couple of years. It has been difficult to balance the overwhelming care necessary for beach trips, the division of labor and planning it takes to get her to the beach, back to the house, comfortable in unfamiliar surroundings, etc. with the modicum of enjoyment she was able to take in. It became apparent last year that she got very little enjoyment out of the experience and her children had a hard time relaxing and enjoying the trip as well. The decision should have been made two years ago, but love muddies things up. The denial of disease and its cruelty is easy with such a sweet life force. Dori, the oldest of her babies, was on the fence all the way up until Father’s Day. While JuJu was sitting next to the pool at Dori’s house in Knoxville a few weeks ago, she said “I think this is the nicest place we’ve ever stayed.” She thought we were at the beach. Last year, while sitting next to Dori, ON THE BEACH, she said, “When are we going on the beach trip?” The handwriting was on the wall. It was time.

she loves so much. We sang Lipstick on Your Collar and then Sweet Caroline. We told funny JuJu stories, but most of all, we quietly mourned. It wasn’t on display. It took place in solitary reverence. I suppose talking about it would have turned into a sob fest. We looked like a family on a beach trip, but closer inspection would reveal subtle grief in the face of every man, woman and child - all 18 of us. A woman who spent her life trying her best to minimize her presence - Oh, how she didn’t want to be a bother - loomed larger than life in her absence, and as I listened to the songs from a playlist I made her years ago (she now listens to the iPod and says “This is the best radio station!”) I was reminded of a poem her granddaughter (my stepdaughter), Cori, wrote about our darling JuJu when JuJu was JuJu and the grandchildren would spend the night. Cori is now 22 and currently serving in the Peace Corps in Guinea, Africa. The words of her tribute rang in my head as Connie Francis sang, the tart summer pie dissolved on my tongue, and the tears formed beneath my sunglasses. I leave you with it now:

At JuJu’s - by Cori Crocker (Age 13)

The popsicles were waiting to be made And eaten once on the porch Songs to be sung with you while Swinging on the swing

Your pennies would be in their jars For us to dump out The dress up in its box to be worn The shows for us to perform for you To make you smile and ask for more

You would prepare your spaghetti And give us the specific cups we wanted Put us in bed and rub our backs And with that last second Before we reach sleep You’d whisper I love you So that your love May be the last thing we hear

While JuJu took her meals at Arbor Terrace on the Fourth of July, we ate Key Lime pie and sang along with her songs in the white sand

DICTA

August 2018

HELLO MY NAME IS By: Katie Ogle McDonald, Levy & Taylor, PLLC

INTERN EXPERIENCES Most often, this column focuses on a specific new member of the Knoxville Bar, but since many new bar members have spent summers in their recent pasts completing internships and studying for the bar, I sought comments from them about these experiences. All the names of these young attorneys have been withheld to preserve their future careers and job possibilities. Best of luck to these inspiring young attorneys as they prepare for the practice of law. • The most valuable piece of information I learned this summer is that you have to respect staff members, and you have to respect your peers, and you have to be able to interact on a conversational level with clients. The attorneys at the firm where I worked impressed upon me the importance of developing a relationship with every attorney’s office, including their support staff. I also learned first-hand the importance of staying in the good graces of the clerk’s office in different courts where the firm practiced.

August 2018

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• I learned to do a lot of research and writing in law school, but had never been in a courtroom before. During my internship, the attorneys at the firm where I clerked invited me to come with them to court. I know that I probably provided more to the firm doing research and writing, but being in court was a great learning experience for me. Watching the attorneys interact with the judges, clients, and other lawyers taught me more than any research could have. • I interned at a small firm and learned quickly that clients don’t always understand what is happening in their case. The attorneys I worked with treated their clients with kindness, but did explain thoroughly the seriousness of their issues. Law school can teach a person to think critically and write well, but there is nothing that can prepare you for a crying client other than actually working at a firm. • I interned at two large corporations when I was in college, and hands-down, attorneys that I worked with this summer, both at the firm where I interned and in other offices work harder than anyone I met in the corporate world.

TIME OUT By: Ann C. Short The Bosch Law Firm

SOLITUDE Occasionally, Marsha Watson sends me book recommendations as possible inspiration for this column. And so it happens that what follows is based on the book “Lead Yourself First: Inspiring Leadership Through Solitude.”

Over time, Goodall’s perceptions became even clearer and led to an almost spiritual awareness of a grand unity with everything in nature around her. It enabled her later to convey effectively the message that chimpanzees (and all animals) are mankind’s companions in the animal kingdom and not simply subjects to be studied.

A few words about the authors, Raymond M. Kethledge and Michael Erwin. If Kethledge’s name sounds vaguely familiar, likely you For me, at times, I seek solitude in the classic sense of physical have had at least several appellate appearances before the United States separation from others. Staying at home to work on an appellate brief. Court of Appeals for the Sixth Circuit. President George W. Bush first Solitude allows me to focus and create and occasionally to catch up nominated Circuit Judge Kethledge to the Sixth Circuit in June 2006. on my laundry. At other times, I find solitude while sitting alone in a After a rather tortured route, Kethledge was voted out of committee and crowded restaurant, where no one is seeking my input or consuming my confirmed in June 2008 by voice vote almost exactly two years after his time. original nomination. Kethledge was the eighth judge nominated to the Now, I certainly do not fancy Sixth Circuit by President Bush and confirmed myself a Jane Goodall among lawyers, and I by the United States Senate. Earlier in his olitude, in other words, is a have yet to develop any spiritual awareness career, Kethledge clerked for United States state of mind in which the of a grand unity with everything legal. But Supreme Court Justice Anthony Kennedy I have experienced those brief moments of mind, isolated from input – but I digress. He is also reported to be that solitude encourages. It is not from other minds, works through creativity on President Trump’s “short list” of possible a stressful experience; it is not life sucking. replacements for Justice Kennedy – but again a problem on its own. So, what interferes with using I digress, and by the time this column reaches solitude as a way to solve problems? publication, the matter may be settled. According to Judge Kethledge and Erwin, we are bombarded daily with Judge Kethledge’s writing companion for “Lead Yourself First” is superficial inputs that distract the mind, “like a thousand Lilliputians.” Michael S. Erwin, a West Point graduate and military veteran, having The authors logically deduce, “Serious thinking, inspired thinking, can served two tours in Afghanistan and one in Iraq. He is President of seldom arise from texts sent while eating lunch or driving a car.” Part of the Positivity Project. Their book presents a series of vignettes -the lesson they teach is “not to let the immediate take precedence over pivotal moments in the lives of Dwight Eisenhower, Jane Goodall, T.E. the important.” And that lesson requires full understanding that time Lawrence, Abraham Lincoln, Ulysses S. Grant, Winston Churchill, “is an unrenewable resource.” Let that sink in: Time is an unrenewable Martin Luther King, Jr., and Pope John Paul II. These moments resource. We cannot engage in anything more than superficial thought involved the use of solitude as a way to solve problems, remain grounded, when hopping back and forth between tweets and work, between emails deal with setbacks, make tough decisions and ultimately continue to and work, between popular news stories and work, or between social present the best form of themselves. media and work. The vignette I most enjoyed was about Jane Goodall and the So, for the past two weeks, I have indulged a small personal stillness of intuition. Writing in Reason for Hope, Jane Goodall said, “The experiment. In the morning, I spend no more than ten minutes checking first step on the road to experiencing true awareness is the cessation of news sites for overnight developments. Five minutes for emails before noise from within.” hopping into the shower. No Facebook or Instagram. At the office, I’m Kethledge and Erwin write, checking emails, of course, local news (potential clients), and legal sites Intuition requires one not only to see, but to hear – to hear – nothing more. Then, in the evening, I catch up on global/national specifically, a more quiet inner voice. True, sometimes news and briefly check into Facebook and Instagram. My iPhone and intuition is emphatic; but more often it is subtle, modest, laptop are stowed in the kitchen, not the bedroom. Books and magazines understated. And thus intuition usually requires mental occupy my nightstand, as they once did many years ago. I have tried quietude to break through the surface of conscious thought. consciously to screen off or out superficial input. I can’t say that I have Intuition therefore requires a deeper form of solitude: an tapped into the mother load of solitude, but I am not bombarded or absence of input not only from other minds, but also from saturated with other people’s random thoughts, messages, advertisements, one’s own. It requires one not to process or agitate – but or agendas. simply to perceive. For this column, I have jettisoned my usual glibness. I recommend a trial run at solitude for those readers who have not already nodded off, Goodall’s solitude was not abandonment of all contact with others; and I would like to hear from those whose experiences have been far after all, she spent years studying chimpanzees. Her early efforts, more rewarding than mine. however, were mostly futile until, freed of escorts, she could hike up a nearby mountain and quietly sit in plain view of the chimpanzees, who gradually began to realize she was not a predator. Her intuition that it was best to approach the chimps openly, rather than by stealth, and alone, not in groups, proved to be the keystone for her brilliant work that would follow.

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August 2018

L E G A L U P DAT E By: Melanie Reid LMU-Duncan School of Law

CURRIER V. VIRGINIA: REVISITING ISSUE PRECLUSION IN THE CRIMINAL CONTEXT The Fifth Amendment’s double jeopardy guarantee provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Double jeopardy doctrine has proven to be incredibly confusing, and the Supreme Court has agreed with that sentiment, pointing out the law surrounding the double jeopardy rule is “a veritable Sargasso Sea which could not fail to challenge the most intrepid navigator.”1 Double jeopardy is meant to keep prosecutors from getting a “second bite” at the apple and reprosecuting a defendant after conviction or acquittal for the same offense.2 The doctrine of issue preclusion has been embodied in the guarantee against double jeopardy since the Supreme Court decided Ashe v. Swenson3 in 1970. Issue preclusion or collateral estoppel means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”4 While the practice of issue preclusion may be commonplace in the civil context, it is rare in the criminal context. Issue preclusion is rarely applied because a defendant usually provides multiple exculpatory claims at trial, and the general jury verdict of “guilty” or “not guilty” is too ambiguous to justify the use of issue preclusion. What issue was resolved other than the general decision that the government did or did not meet its burden beyond a reasonable doubt?5 Ashe v. Swenson was one of those rare criminal cases where issue preclusion applied. Ashe was accused of being part of a group of masked men who robbed six poker players while they were playing at the home of one of the victims. The prosecutor charged Ashe with the armed robbery of one of the six poker players. At trial, Ashe argued the eyewitnesses were mistaken, he was not one of the robbers. The jury acquitted Ashe. The prosecution then tried Ashe for robbing a different poker player at the same table, and the jury found him guilty. The Supreme Court held issue preclusion prohibited further criminal proceedings against Ashe because the jury clearly did not accept the prosecutor’s claim in the first trial that Ashe was one of the robbers in the house. As that issue could no longer be relitigated, there was no basis to prosecute Ashe for the remaining robberies. Almost fifty years after Ashe v. Swenson, the Supreme Court has decided to revisit issue preclusion in Currier v. Virginia.6 On March 7, 2012, Paul and Brenda Garrison found the safe in their home containing $71,000 in cash and 20 firearms was gone. Police later recovered the safe, which had been dumped in the river. The cash was gone but the firearms were still inside. Michael Currier was charged with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. Prior to trial, both the prosecution and Currier agreed to sever the felon-in-possession charge from the burglary and larceny charges since the state would have to introduce prior felony convictions to prove the felon-in-possession charge and such evidence of prior convictions (particularly prior burglary convictions) could be highly prejudicial to Currier. At the first burglary-and-larceny trial, a neighbor testified that around the time of the theft, she saw Currier in a white pickup truck leaving the Garrison’s driveway, and the Garrison’s nephew testified Currier helped him break into the house and steal the safe. Currier argued at trial he was not involved in the break-in and theft (the nephew lied and the neighbor was unreliable). Currier was acquitted. Before the second trial for felon-in-possession, Currier argued holding a second trial would violate the issue preclusion doctrine. The trial court allowed the second trial to proceed, and Currier was convicted on the felon-in-possession charge. August 2018

Five Justices did not even reach the issue of whether issue preclusion applied to this particular set of facts.7 Rather, the majority held that when a defendant (like Currier) consents to multiple trials, double jeopardy is simply not at issue anymore. Currier consented to the severance; Ashe did not.8 Four out of the five Justices (all except Justice Kennedy) in the majority also wanted to hold that issue preclusion has virtually no role in the criminal context (unlike in civil litigation).9 The Double Jeopardy Clause “speaks not about prohibiting the relitigation of issues or evidence but offenses.” 10 ”[O]nly in the Seventh Amendment – and only for civil suits – can we find anything resembling contemporary issue preclusion doctrine.”11 If issue preclusion was to be considered part of the defendant’s constitutional right against double jeopardy, “why wouldn’t it preclude the retrial of any previously tried issue, regardless whether that issue stems from the same or a different ‘criminal episode?’”12 Allowing issue preclusion for defendants would cause a massive strain on the government’s resources, witnesses, and victims.13 “[C]ivil preclusion principles and double jeopardy are different doctrines, with different histories, serving different purposes.”14 Therefore, the prosecution at the felon-in-possession trial can once again attempt to prove Currier was in the home and helped steal the safe. Four Justices in the dissent believed that issue preclusion should apply in the Currier case. 15 Similar to the issue in Ashe, the sole issue in dispute at the first trial was “whether [Currier] participated in the break-in and theft.”16 Since the first jury found Currier “not guilty,” and therefore implicitly decided that he was not in the home and did not assist in the burglary, the prosecution could not argue that fact in the second trial. The prosecutor would have to posit an alternative theory that Currier met the burglars at the river and handled the guns at that time or simply not try the defendant on the felon-in-possession charge. So is issue preclusion still relevant in the criminal context? Four Justices say it is not part of the Double Jeopardy Clause. Four Justices in the dissent say it is. Since the case was decided on the narrow issue that Currier consented to the second trial, issue preclusion perseveres (for now). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

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Texas v. Cobb, 532 U.S. 162, 185 (2001) (citing Albernaz v. United States, 450 U.S. 333, 343 (1981)). Brown v. Ohio, 432 U.S. 161, 165 (1977). 397 U.S. 436. Id. at 443. Contrast our use of the general verdict with European countries such as Spain and France that adopted special verdicts that actually list factual reasons given by the jury for their verdict. Stephen C. Thaman, Comparative Criminal Procedure 2nd ed., Carolina Academic Press at 198-199. 2018 WL 3073763, __ S.Ct. __ (2018). See Justice Gorsuch’s opinion Parts I and II. Id. at *5. See Justice Gorsuch’s opinion Part III at *7. Id. at *8. Id. Id. at *10. Id. at *11. Id. See Justice Ginsburg’s dissent. Id. at *16.

C L I N I C A L LY S P E A K I N G Legal clinics are full of stories. Lawyers are able to meet people in need - where those people are - and volunteer attorneys are not only discovering the satisfaction of serving directly, they are becoming part of peoples’ stories. Amy Morris Hess, UTK Law School Professor, shared one such experience: “At one of the TFJA clinics that I brought Wills Clinic students to, an older lady had questions about the best way to give her home and surrounding land to her children after she passed away. One of the Wills Clinic students got some details and explained that the student attorney could write her a will that would do what she wanted. She had lots of questions, of course, about how to be sure the children got the property, how much probate would cost, how to choose an executor etc., which the student answered. Finally, she asked how much our services would cost. When the student attorney said they were free, the lady got all teary-eyed and thanked the student repeatedly, blessing us for the work we were doing. The property had been in her family for several generations and she had come to the clinic afraid that the family would lose it because she would not be able to pay a lawyer to do the estate planning.” Upcoming opportunities: • August 4 - Knox County Saturday Bar at the Knoxville office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m. • August 8 - Barristers’ Access to Justice Veterans’ Legal Clinic at the Knox County Public Defender’s Community Law Office, noon - 2 p.m. (sign up at www.knoxbar.org) • August 11 – Pro Bono Debt Relief Clinic – 9:30 a.m. – 12 p.m., Knox County Public Defender’s Community Law office. (sign up at www.knoxbar.org)

• • • •

August 18 - Blount County Saturday Bar at the Blount County office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m. September 8 – Faith and Justice Clinic, Annoor Academy of Knoxville, in conjunction with LAET’s Saturday Bar, 9 a.m. – 12 p.m. September 12 - Barristers’ Access to Justice Veterans’ Legal Clinic, at the Knox County Public Defender’s Community Law Office, from 12 Noon- 2 p.m. September 15 – Blount County Saturday Bar at LAET’s Blount County Office, 9 a.m. – 12 p.m.

Clinics coordinated by KBA committees and sections may be found at www.knoxbar.org under “CLE & Events” and “Upcoming Legal Clinics” along with online signup forms. To volunteer for ANY Saturday Bar, contact Kathryn Ellis, LAET Pro Bono Project Director by phone at (865)637-0484, by email at kellis@ laet.org, or visit http://bit.ly/2PBPvol to sign up online.

Asset Management Trust Administration Estate Services To learn more about our services, contact:

John L. Billings, Vice President - Client Administration 1111 N. Northshore Drive, Suite S-250 Knoxville, Tennessee 37919 • 865.297.4070

tcvwealth.com

DICTA

August 2018

MANAGEMENT COUNSEL: LAW OFFICE 101 By: J. Chadwick Hatmaker Woolf, McClane, Bright, Allen & Carpenter, PLLC.

SHHH? SEXUAL HARASSMENT SETTLEMENTS MAY NO LONGER BE DEDUCTIBLE The tax reform law that passed in December 2017 has been the topic of much discussion. Does the law benefit anyone more than real estate developers? It certainly does not benefit hard working lawyers. Why does the law eliminate the tax deduction for gifts to colleges and universities that are typically made to receive tickets to athletic events (Go Vols!)? Nondisclosure agreements pertaining to President Trump have also been the subject of much recent discussion. Adult actress Stormy Daniels and former Playboy model Karen McDougal are both pursuing lawsuits to invalidate nondisclosure agreements that prevent them from discussing their alleged affairs with the President before he was elected. But is there any connection between nondisclosure agreements and the new tax law? In what may come as a surprise, the answer is yes. In response to the #MeToo Movement, Congress included the following provision in the new tax reform bill: No deduction shall be allowed under this chapter for – (a) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement; or (b) attorney’s fees related to such a settlement or payment. This portion of the law took effect on December 22, 2017. It applies to settlement payments and attorney’s fees paid after that date. It seems clear that the intent of this provision is to remove the tax deduction from a payment made to settle a sexual harassment or sexual abuse suit if the payment is subject to a nondisclosure or confidentiality agreement. But several questions remain. For example, what is meant by “sexual harassment”? A claim of sexual harassment under Title VII or the equivalent state law would obviously be covered, but what about a claim based on sex- or gender-based harassment, plead solely under tort law? A case based on sexual harassment or sexual abuse may be plead as assault, battery, intentional infliction of emotional distress or other similar state law tort theories because of a statute of limitations issue, or for other strategic reasons. In addition, what is meant by “related to”? Is a settlement payment for a retaliation claim, where the allegation of retaliation is based on the reporting of an underlying claim of sexual harassment, “related to” sexual harassment and thus not deductible? And what constitutes “sexual abuse”? One would think sexual assault would qualify, but do tort claims of assault and battery? There are additional definitional issues as well. Consider the phrase “non-disclosure agreement” in the bill. This term is also not defined, so what qualifies as “a nondisclosure agreement”? Presumably, this includes any confidentiality or nondisclosure provision, but some clarity would be welcome.

Questions abound even outside of the definitions of the provision’s basic terms. What if there are multiple claims being settled, only one or some of which is/are “related to sexual harassment or sexual abuse”? Is the entire payment not deductible if a confidentiality provision is included in the agreement, or just the portion pertaining to sexual harassment or sexual abuse? And will allocating a specific portion of the payment to the sexual harassment/abuse claim suffice, so that only that allocated amount is not deductible? And what about the attorney’s fees in such circumstances? If a nondisclosure agreement or provision is required, is the deduction lost for all the fees in the case, or just the portion “related to such a settlement or payment”? It is also unclear how this new law will apply to standard general waivers and releases, even when there has been no specific allegation of sexual harassment or abuse. Often, when employers offer a severance package to a departing employee, they make it contingent upon the employee executing a full and general waiver and release, which would include claims for sexual harassment/abuse under Title VII and state/local law counterparts. The same is true when settling other claims by a current or former employee; the settlement agreement almost always has such a full and general waiver and release. Given that the departing employee is waiving potential claims of sexual harassment and abuse, does such an agreement fall within the parameters of the new law? One would expect that this was not the intended target of the new law, but statutes often expand beyond their original intent (see, for example, the new trend in various federal jurisdictions to include sexual orientation as protected under Title VII’s “sex” component). There are practical questions as well with respect to how this provision could impact settlement negotiations and parties’ willingness to settle. Will this provision impact whether cases settle at all? Perhaps some defendants will refuse to settle because of the loss of the deduction. Or alternatively, perhaps a plaintiff, emboldened by this provision, will refuse to agree to any portion of the settlement being confidential. Unfortunately, we have many more questions than answers at this point, and so the key takeaway for outside counsel from this new provision is “informed decision-making.” Currently, in most employment cases the settlement is subject to a confidentiality provision, and most employers consider that an automatic requirement. Congress has now given employers settling sexual harassment and sexual abuse claims reason to pause before making confidentiality a part of the settlement. Lawyers must now make sure that clients consider the pros and cons of silence versus the tax deduction, before the client makes the decision to include a confidentiality provision. This discussion should come early in the settlement process in order to avoid an eleventh hour “killing of the deal.” Most clients do not like surprises, and learning that they cannot have confidentiality after they have agreed to settle the case will likely rank very high on the unpopular surprise list.

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. August 2018

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BAR HOPPING

It’s a Family Matter

By: Brady Cody Lewis Thomason

New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Kudos for a great showing last month – we had 10 total winners! Congratulations to Richard Krieg, Joseph White, Heather Shubert, Ed Shultz, Doug Dutton, Bridgett McMahan, “JB”, Dennis Jarvis, Harold Pinkley, and Mikel Towe for correctly identifying the Loudon County Courthouse.

Asset Management | Trust Administration | Estate Services Since 1993, our focus has been on preserving our clients’ financial assets, managing growth, and efficiently transferring wealth from one generation to another. We work closely with attorneys to insure the coordination of our clients’ personal and financial goals.

Think you can name this courthouse? Email me at bcody@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.

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To learn more about our services, contact:

John L. Billings, Vice President - Client Administration 865.297.4070 | tcvwealth.com A trust is not required to utilize our investment expertise.

August 2018

LAWYER HOBBIES By: Katie Ogle McDonald, Levy & Taylor, PLLC

DEBORAH BUCHHOLZWINDOWS OF MANY COLORS The glass is then scored, cut, and ground using various tools of the trade, and pasted onto the template using a temporary adhesive. After all the pieces have been fitted into place, the artist uses copper foil to seal the gaps between pieces. The glass is then soldered along these seams in a process called “tinning.”

By day, Knoxville attorney Deborah Buchholz focuses her legal practice on health care transactional issues, and can be found ensuring that corporate compliance is met with regard to Medicare and Medicaid. In contrast, on weekends and time away from work, she can be found looking through rose-tinted glass… literally. Buchholz had always admired the look of stained glass in churches and in older homes, and began researching this as a new creative outlet a few years ago. Lo and behold, there was a weekend class at a shop in the Fountain City area of town, and she enrolled immediately. Since that first course, she has completed an advanced level class, and is currently in the lamp class which lasts for four months. Her project in this class is a lamp shade with a peacock design that will be hung as a pendant light and is pictured below. Buchholz explained that there is a process for each stained glass design that either begins with using a pattern that was previously created or by sketching and coloring an original design before involving the glass element of the art. This template is then drawn to the actual size of the stained glass piece on graph paper and colored according to the artist’s design. Buchholz noted that she has created several original designs, but has also used templates for certain projects. After the design sketch has been completed, sheets of glass can be purchased from art supply stores, or glass can be recovered from other locations, like antique stores or through incorporating family heirlooms.

August 2018

Over the last few years, the attorney at Howard & Howard has created pieces that she has simply been inspired to make, as well as artwork that her friends and co-workers have asked her to design. One special project that she has completed includes four small plates that each belonged to women in different generations of the same family. When she was approached to make a commemorative piece using the plates, she sketched a design and made the piece come to life. Buchholz explains that she enjoys creating pieces of art that simply make people happy to see and own. In addition to stained glass art for others, Buchholz also designed and installed a piece above her front door. Neighbors have commented on its beauty and have often asked where she purchased the glass. Outside of the artwork itself, the camaraderie and encouragement from fellow artists has been a great way for Buchholz to meet new people and share this creative pursuit. If you’re interested in joining this group of Knoxville artists, or just learning more about creating beautiful stained glass art, this fellow attorney welcomes anyone who is interested

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To Bake or not to Bake?

Masterpiece Cakeshop and the Tension between Non-Discrimination and Freedom On June 4, 2018, the U.S. Supreme Court, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission1 “punted” on adjudicating the balance between non-discrimination against gay individuals and the free exercise of religion. The Court concluded that an administrative adjudication, brought under the Colorado AntiDiscrimination Act (“CADA”), against a Denver-area baker, Jack Phillips, who refused a custom wedding cake to a gay couple, improperly violated Phillips’ First Amendment Rights to freely exercise his religious beliefs. A transcript of the administrative hearing (and the results of other CADA cases) ostensibly evidenced a bias against religion that violated Phillips’ First Amendment rights. Because the case was resolved on such narrow grounds, it’s of limited relevance regarding the level of non-discrimination that gay Americans can expect. In view of Justice Kennedy’s retirement and the fact his likely successor will be Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals, a more traditional conservative, the decision adumbrates a Court that will more receptive of First Amendment speech, association and religion arguments to undermine anti-discrimination laws.

Two Men and a Baker Phillips’ bakery, Masterpiece Cakeshop, was visited by a gay couple, Charlie Craig and Dave Mullins, in the summer of 2012 before Colorado recognized same-sex marriages.2 The couple planned to legally wed in Massachusetts and host a reception for family and friends in Denver. They visited the Cakeshop with Craig’s mother and told Phillips they were interested in ordering a cake for “our wedding” without specifying anything about cake design. Phillips told the couple that “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”3 The following day, Craig’s mother telephoned to ask Phillips why he refused to serve her son. Phillips said he doesn’t bake cakes for same-sex weddings because of his religious opposition to same-sex marriage and because Colorado (at that time) did not recognize same sex marriages. He later elaborated: “To create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”4

The Colorado Anti-Discrimination Act (“CADA”) Neither the Civil Rights Act of 1964 nor the Fourteenth Amendment’s Equal Protection Clause provide any protection to LGBTQ Americans in circumstances such as these. The relevant provision of the Civil Rights Act protects individuals from discrimination on the grounds of race, religion, sex, national origin or color – but not sexual orientation. The Equal Protection Clause, moreover, only protects individuals from government mistreatment and not discrimination by private individuals.5 Accordingly, Craig and Mullins sought redress under CADA which prohibits and provides an administrative system for the resolution of discrimination claims in employment and places of public accommodation on numerous grounds, including sexual orientation.6 Under CADA the Colorado Civil Rights Division first investigates a claim before it’s referred to the Colorado Civil Rights Commission. The Commission can initiate a formal hearing before a state administrative law judge (“ALJ”). The ALJ’s decision is appealable to the Commission, a seven-member appointed body, which holds a public hearing and deliberative session before voting. If the Commission holds that a CADA violation has occurred, it may impose statutory remedial measures.” The Division’s investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples and that the Cakeshop “had a policy of not selling baked goods to same-sex couples for this type of event.” The state ALJ ruled in the Craig and Mullins’ favor and concluded that Phillips’ actions constituted discrimination on the basis of sexual orientation, not simply opposition to gay marriage. The ALJ rejected Phillips’ claim that applying CADA to require him to create such a cake would violate his speech rights by requiring him to express a message with which he disagrees, concluding CADA is a valid and neutral law of general applicability that does not discriminate against religion.7 The Commission affirmed the ALJ’s decision and ordered Phillips to “cease and desist from discriminating against same sex couples by refusing to sell them wedding cakes or any product they would sell to heterosexual couples.”8 It also ordered remedial measures, including comprehensive staff training on the Public Accommodations section” of CADA and required Phillips to prepare quarterly compliance reports for two years documenting the number of patrons denied service, along with a statement describing remedial actions taken.9 The Colorado Court of Appeals rejected Phillips’ argument that the Commission’s order unconstitutionally compelled him to partake in speech he disagreed with and therefore violated his religious freedom. The U.S. Supreme Court granted certiorari to hear Phillips’ appeal.10

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August 2018

COVER STORY By: Mohamed Akram Faizer Professor of Law, LMU Duncan School of Law

Having our Cake and Eating it Too: Can Religious Freedom and Non-Discrimination Co-Exist? Justice Kennedy’s majority decision held in Phillips’ favor on First Amendment grounds, arguing that the Commission’s treatment of the case demonstrated a clear and impermissible hostility toward religion. The Court noted that the hearing transcript revealed that commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, thereby implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state”; another posited that “if a businessman wants to do business in the state and he’s got an issue with the – the law’s impacting his personal belief system, he needs to look at being able to compromise.”11 The Court allowed that these statements are susceptible to different interpretations, but maintained they likely demonstrate a lack of due consideration for Phillips’ religious freedom.12 At a July 25, 2014 open hearing, one commissioner stated that freedom of religion has been used to justify historical injustices such as slavery and the Holocaust and “to me it is one of the most despicable pieces of rhetoric that people can use to-to use their religion to hurt others.”13 Because the record showed no objection to these comments from other commissioners and the later state court ruling reviewing the Commission’s decision failed to either mention the comments, much less express concern with their content, the Court concluded that it “cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” This, according to the Court, was completely inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.14 Kennedy’s decision concluded that “cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”15

1 138 S. Ct. 1719 (2018) 2 The Supreme Court required nationwide legalization and recognition of same-sex marriage in Obergefell v. Hodges, 576 U.S. __ (2015). 3 138 S. Ct. at 1724. 4 138 S. Ct. at 1724. 5 Indeed, the Tennessee Human Rights Commission, five members of whom are appointed by the Governor, two by the House Speaker and two by the Senate Speaker, is only entitled to protect individuals in places of public accommodation on the grounds of race, sex, color, religion and national origin. See T. C. A. 4-21-501 et seq. 6 Interestingly, the CADA disallowed discrimination against LGBTQ individuals when Colorado still disallowed same-sex marriage. 7 138 S. Ct. at 1726. See also Employment Division v. Smith, 494 U.S.872 (1990). 8 138 S. Ct. at 1726. 9 138 S. Ct. at 1726. 10 138 S. Ct. at 1726. 11 138 S. Ct. at 1729 12 138 S. Ct. at 1729 13 138 S. Ct. at 1729. 14 138 S. Ct. at 1729. 15 138 S. Ct. at 1732. 16 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) (concluding that closely held, for-profit corporations can have religious freedom rights under the Religious Freedom Restoration Act to preclude compliance with the Patient Protection and Affordable Care Act’s contraception mandate); see also Citizens United v. FEC, 558 U.S. 310 (2010)(concluding that corporations have speech rights protected by the First Amendment to preclude independent spending and advertising); see also Janus v. AFSCME, 585 U.S. ___ (2018) (concluding the First Amendment’s speech clause precludes unions from collecting dues from non-union members for collective bargaining purposes); and see also National Institute of Family and Life Advocates v. Becerra, 585 U.S. __ (2018) (concluding that California’s FACT Act, which mandates that crisis pregnancy centers advise about abortion alternatives to continued pregnancy, violates the centers’ speech rights).

The Dubious Future of Anti-Discrimination Jurisprudence The narrowness of Kennedy’s decision fails to resolve the disputed balance between civil rights statutes that purport to assure individuals of non-discriminatory treatment and First Amendment rights to associational and religious freedom. To paraphrase Yogi Berra, making predictions is precarious, especially about the future, but there is reason for civil rights and LGBTQ advocates to be concerned. First, Kennedy’s likely replacement, Judge Kavanaugh, is a traditional economic and social conservative who will likely align himself with the Court’s other conservatives, whose recent jurisprudence demonstrates an inclination to, as Justice Kagan has written, “weaponize” the First Amendment to invalidate social welfare, campaign finance, labor and health care legislation.16 Although limited, the decision in Masterpiece Cakeshop, in conjunction with changes in court composition and the dynamics of its recent jurisprudence, portends a bleak future for anti-discrimination laws nationwide. In 2010, President Obama, seeking to rebut allegations that his signature piece of legislation was illegitimate, advised his political opponents that “elections have consequences.” The Court’s composition and the current President’s role in nominating justices is a continuous reminder of this fact. August 2018

DICTA

LEGAL MYTH BREAKERS By: David E. Member, MGC

Long

TENNESSEE RULE OF CIVIL PROCEDURE 6.01 AND STATUTES OF LIMITATION On January 10, 2018, Jack and Jill file a personal injury complaint in the local circuit court alleging that their injuries occurred on January 9, 2017. January 9, 2018 was not a holiday or a weekend, and the day was bright and sunny. The court clerk’s office was open for business. The complaint alleges various non-specific personal injuries as a result of the alleged accident, but does not contain any allegation regarding property damage or any other legal theory outside of damages stemming from the plaintiffs’ alleged personal injuries and/or loss of consortium. The defendant files a motion to dismiss alleging that the statute of limitations ran, barring the lawsuit. Plaintiffs argue that Tennessee Rule of Civil Procedure 6.01, by its language, grants an extra day. Does it? No. In Tennessee, the statute of limitations for personal injury claims is one year from the date on which the cause of action accrues.1 The statute provides in pertinent part that actions “for injuries to the person” must “be commenced within one (1) year after the cause of action accrued[.]”2 Calculation of with time regard to statutes of limitations is governed by Tennessee Rule of Civil Procedure 6.01. The rule, which is not an easy read, provides: In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday as defined in Tenn. Code Ann. § 15-1-101, or, when the act to be done is the filing of a paper in court, a day on which the office of the court clerk is closed or on which weather or other conditions have made the office of the court clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.3

Rule 6.01 is a confusing read because it is capable of being interpreted two ways. For instance, if the “day of ” the accident is not counted, then it is easy to come to the conclusion that the Rule “adds” another day to the year. The case law, however, rejects that argument. It would be better, perhaps, to simply rewrite Rule 6.01 to say the day of the accident, etc., is included. That would make the rule clearer. It is not likely, however, that Rule 6.01 will be amended. As such, it should be read in conjunction with case law interpreting it. 1 Tenn. Code Ann. § 28-3-104. 2 Id. § 28-3-104(a)(1)(A). 3 Tenn. R. Civ. P. 6.01. (emphasis added). 4 Smith v. Hose, No. 03A01-9501-CV-0006, 1995 Tenn. App. LEXIS 410, *4 (Tenn. Ct. App. June 21, 1995) (citing McCleary v. Morgan, 60 Tenn. App. 578, 449 S.W.2d 440 (Tenn. Ct. App. 1968); West v. Cincinnati, N.O. & T.P. Ry. Co., 108 F. Supp. 276 (E.D. Tenn. 1952) (applying Tennessee law); Coleman v. Dooley, 1991 Tenn. App. Lexis 29 (Tenn. Ct. App. January 18, 1991)). 5 Id. at *4. 6 See Tucker v. U.S., No. 3:06-cv-282, 2006 WL 2323252, *1 (E.D. Tenn. Aug. 9, 2006); Ross v. Artuz, 150 F.3d 97, 103 (2nd Cir. 1998) (“When a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the start of the limitations period.”); Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir. 1997) (discussing the Tennessee personal injury statute of limitations and holding that for purposes of calculating a statute of limitation, the one-year period “ends on the same calendar date the following year”).

Additionally, Tennessee Code Annotated section 1-3-102 (“Computation of time”) provides that “The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.” Taken together, section 28-3-104(a)(1), section 1-3-102, and Rule 6.01 require that “the last day to file a personal injury action in Tennessee is the anniversary date of the accident, unless that date is one of the dates expressly excluded by Rule 6.01.”4 For example, in Smith v. Hose the court held that a complaint filed on the day after the anniversary date of a motor vehicle accident was time-barred.5 Similarly here, Jack and Jill’s Complaint in the above example is time-barred because it was filed on the first day after the anniversary date of the personal injury accident at issue. None of the exceptions within the purview of Rule 6.01 are present. January 9, 2017, the date the complaint should have been filed, was on a non-holiday, week day of business and meets no other exceptions set forth in Rule 6.01.6 Legal holidays are set forth in surprising detail in Tennessee Code Annotated section 15-1-101. One should be cautious in making sure the holiday is one recognized by the state of Tennessee when filing in a state court.

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August 2018

O F T H E R M O M E T E R S & T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.

LOOK FOR THE LOOPHOLE

In the summer of 1919, the Tennessee Supreme Court was presented with a very important constitutional question. The question involved the newly-enacted House Bill 717,1 which was introduced by Representative Leonidas Dewitt “L.D.” Miller, Sr., from Hamilton County.2 L.D. was a self-made man. Like many children of that era, he dropped out of school in 1897 at the age of thirteen to work.3 Although he did not resume his formal education until he was twenty-two, L.D. was not idle. He was described as “ambitious to promote his knowledge,” and he spent every spare minute reading and learning. In 1907, he enrolled in Grant University, and in 1909, he began taking night classes at the Chattanooga Law School. By July 4, 1910, he had passed the Tennessee Bar Exam and was admitted to practice law.4 In 1915, he married Lena Kate Wills. They were married for 8 years until Lena Kate died giving birth to their fourth child.5 L.D. stayed in private practice until 1931 when he became the first judge of the Hamilton County Criminal Court, Second Division where he served for 23 years.6 But in 1919, when he introduced H.B. 717, L.D. was a fairly new, 35-year old attorney with a young wife and two little girls at home. We don’t know for sure, but it is entirely possible that he was thinking of them when he introduced H.B. 717, because, over a year before the Nineteenth Amendment was fully ratified, H.B. 717 was the first law passed by any Southern state which granted women a right to vote.7 H.B. 717 allowed Tennessee women over the age of 21 to vote (1) for electors for President and Vice President of the United States, (2) for municipal officers, and (3) “upon all questions or propositions submitted exclusively to a vote of the electors of such municipalities.”8 If you think the Bill was oddly limited, you are correct. L.D. carefully tailored H.B. 717 for a reason. At the time, Article 4, Section 1 of the Tennessee Constitution stated: Every male person of the age of twenty-one years, being a citizen of the United States, and a resident of this State for twelve months, and of the county wherein he may offer his vote for six months, may vote for members of the General Assembly and other civil officers for the county or district in which he resides... and all male citizens of the state shall be subject to the payment of poll taxes and to the performance of military duty, within such ages as may be prescribed by law.9

Elsewhere, the Constitution provided that the Governor, members of the General Assembly, state judges, and certain county officials (sheriff, constables, register, etc.) were to be elected by the “qualified voters” of the state or county.10 Everyone understood that “qualified voters” referred back to those “male persons” who were authorized to vote. Ever the good attorney, L.D. had found the loophole. The Tennessee Constitution was silent about who could vote for President and Vice President and who could vote in municipal elections, so L.D. crafted H.B. 717 to give women the right to vote in those elections. H.B. 717 passed in April 1919 and became Chapter No. 139 of the Acts of 1919.11 That wasn’t the end of it. No sooner was the ink dry on Governor Roberts’ signature than Mr. John J. Vertrees had filed suit and obtained an injunction against implementation. John was a wellconnected Nashville attorney who had been practicing since before L.D. was born.12 John opposed women’s suffrage, but not for the reasons you might think. He believed those who had not served in the military should not vote, and at the time, women could not serve.13 The lawsuit made an expedited journey to the Tennessee Supreme Court, and the Court was asked to determine whether the law was constitutional. The Court agreed with John that “qualified voters” meant only male voters could vote for the offices enumerated in the Constitution. But then, the Court then upheld L.D.’s loophole. August 2018

Article VII, Section 4 of the Constitution stated: “The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct.”14 Accordingly, the Court held, Since municipal officers are not referred to in the Constitution, and there is no provision in that instrument as to the manner of their selection, and since presidential and vice presidential electors are not referred to in the Constitution, and no mention is made as to the manner of their selection (and this doubtless could not be regulated by the state Constitution), the conclusion inevitably follows that, under the provisions of section 4 of article 7 of the Constitution, the election of such officers “shall be made in such manner as the Legislature shall direct.” It is thus competent for the Legislature to provide that such officers may be selected by other instrumentalities, or the Legislature itself may select them.15

Indeed, the Court noted, a bit cheekily, “the Legislature perhaps might confer the power to select such officers upon the women alone.”16 The Court went on to dispense with the plaintiffs’ other arguments, my favorite being that the law “arbitrarily discriminated” against male voters because Art. 2, § 28 of the Constitution required “male citizens” to pay a poll tax. (Note to self: arguing that a law to overturn a century of discrimination is itself discriminatory because it causes a discriminatory system of laws to backfire is a bad idea.) The rest is history. On August 9, 1920, Governor Roberts convened a special legislative session to vote on ratification of the Nineteenth Amendment. The debate was fierce, and the chambers were full of out-of-state lobbyists for and against ratification. Once again, L.D. rose to the occasion and delivered a “ringing speech” for ratification – the last speech before the vote. On August 18, 1920, Tennessee ratified the Nineteenth Amendment. As Harry Burn who cast the deciding vote put it, “I appreciated the fact that an opportunity such as seldom comes to a mortal man to free seventeen million women from political slavery was mine.”17 On August 18th, we will celebrate the first “Febb Burn Day” in honor of Harry Burn’s mother whose letter convinced him to cast the deciding vote for the Nineteenth Amendment.18 But, let us also remember L. D. Miller, the young lawyer from Chattanooga who refused to be a thermometer and instead changed the temperature for his wife, his daughters, and women across the United States. 1 H.B. 717, Tenn. Pub. Acts ch. 139, p. 519 (1919), available at https://babel.hathitrust.org/cgi/pt?id=uc1.b3693053;view=1up;seq=537. 2 See id. 3 Memorial, Leonidas Dewitt “L.D.” Miller, Sr., https://www.findagrave.com/memorial/136740190/leonidas-dewitt-miller Id. Keep in mind that in 1910, the Tennessee Board of Law Examiners had been around 4 for only 7 years. See Lewis R. Hagood, A Brief History of the Tennessee Board of Law Examiners & the Standards for Bar Admissions in Tennessee, 71 Tenn. L. Rev. 571, 575-76 (2004). 5 The child, a daughter, did not survive. See Memorial, Lena Kate Wills Miller, https://www.findagrave.com/memorial/136728218/lena-kate-miller. 6 Hamilton County Criminal Court, https://criminalcourt2.org. 7 See Memorial, Leonidas Dewitt “L.D.” Miller, Sr. 8 H.B. 717, Tenn. Pub. Acts ch. 139, p. 519 (1919). 9 Tenn. Const. art. IV, § 1 (1870). 10 Tenn. Const. art. III, § 2; art. VI, §§ 3, 4, 13, 15; art. VII, § 1 (1870). 11 H.B. 717, Tenn. Pub. Acts ch. 139, p. 519 (1919). 12 See Carole Stanford Bucy, John J. Vertrees, Tennessee Encyclopedia (Mar. 1, 2018), https://tennesseeencyclopedia.net/entries/john-j-vertrees/. According to his bio, Mr. Vertrees was personal friends with future President William Howard Taft. 13 See id. 14 Tenn. Const. art. VII, § 4 (1870). 15 Vertrees, et al. v. St. Bd. of Elections, et al., 214 S.W. 737, 739-40 (Tenn. 1919). 16 Id. at 740. 17 Marjorie Sprull Wheeler, et al., Votes for Women! The Women’s Suffrage Movement in Tennessee and the South, pp. 262-266 (Univ. of Tenn. Press 1995). 18 See Tenn. Code Ann. § 15-2-130 (2018).

DICTA

LIFE & LAW IN HARMONY By: Leslie L. Beale, JD Executive and Developmental Coach, Profusion Strategies

FILL YOUR TIME WITH VALUE I wish I could, I just don’t have the time. If only I could find time, I would… I feel like all I do is rush.

• Pay attention to how you feel. Again, most of us have figured this out, at least to some degree, when it comes to food. We know that when we overindulge, we end up feeling tired, sluggish, and irritable. The same goes for activities. High value activities should leave you feeling relaxed, yet energized. You should feel like you’ve accomplished something, or that you’ve successfully rejuvenated so that you’re ready to accomplish something. When you’re feeling off, begin to pay attention to how you’re spending your time and make adjustments to realign.

How many times have you said these words, or something similar? How often do you hear those around you complaining that they don’t have time to do the things they want to do most? We seem to all be struggling with a feeling that time is scarce. But, often our actions reflect a different attitude altogether. We spend endless hours watching television shows. In fact, some sources indicate that the average American watches over five hours of television a day! We obsessively scroll through social media feeds, engaging less and less with the actual people around us. We check our email over and over again. In short, we waste the very resource we want more of – time. I’m not one of those productivity folks who will tell you that every minute needs to be spent doing something important – far from it. In fact, I think that some of the activities we feel are the most wasteful of our time – sleeping, sitting outside, thinking – are the very ones we’re missing most. What I do believe, however, is that we aren’t good enough at understanding the things that really drive value in our lives. More importantly, we’re truly bad at filling our time with those activities. We all seem to accept that filling our bodies with junk food just isn’t good for us. We know we need fresh, healthy food to operate at our best. Yet, we think far less about filling our days with “junk” activities.

What’s High Value to You? The first, and perhaps most difficult step, of filling your days with high value activity is to identify what those activities are for you. Unlike food, where the guidelines are similar for most of us, this is a highly individualized endeavor. The same activity that fills your tank may be the very thing that depletes others.

hoosing to fill your life with activities that move you closer to your goals - of achievement, of purpose, of well-being – creates an energizing loop in our lives.

It’s All About Choices It’s up to each of us how we choose to spend our time, but that choice isn’t without consequences. Filling your hours and days with activities that don’t excite you, engage you, relax you, or challenge you sends you in the direction of burn out. You end up worn down by the grind, and feeling like there’s no room for the things that matter most. It refreshes us, pushes us, creates curiosity, and plants the seeds for creativity. What do you chose?

That being said, there are a few principles that can be of help: • All things in moderation. Just like having one brownie won’t wreck your physical health, spending a few minutes watching a favorite television show or looking at cute puppy videos on social media can be just the thing you need to give your brain a break. The trick is to set limits on yourself. A little bit is fine, but without limits, you can find yourself indulging in junk activity for hours on end. • Have a little from all the major groups. While I’m generally negative on the concept of work/life balance, I do believe in trying to lead a generally balanced life. That means spending some time in each of your major life categories – family, spirituality, work, health, leisure, etc. Going for long periods without any attention to a major life category is a generally bad idea. So, take a little from each group.

DICTA

August 2018

SCHOOLED IN ETHICS By: Alex B. Long Associate Dean for Academic Affairs University of Tennessee College of Law

THE CHARACTER AND FITNESS REQUIREMENT FOR ADMISSION TO THE BAR: IN RE SIMMONS In keeping with the tradition here at Schooled in Ethics of devoting a column in the summer to ethical issues involving bar admission, this month’s column addresses a recent court decision involving the character and fitness portion of the bar application process. In re Simmons, 414 P.3d 1111 (Wash. 2018).

denied, in part, on the grounds that Simmons “had not yet spent enough time maintaining her sobriety and actively engaging in positive behaviors to establish a record of conduct consistent with good moral character and fitness to practice law.” The Washington Supreme Court heard oral arguments on her application in November 2017.

Like every state, Tennessee requires that an applicant demonstrate the requisite character and fitness to practice law. Making false statements of fact or omitting relevant facts during the bar application process is probably the most common basis for denial of an application. See TRPC R. 8.1(a) (prohibiting an applicant from knowingly making a false statement of material fact); In re Green, 464 A.2d 881 (Del. 1983) (involving applicant who failed to disclose several prior ethics complaints filed against him in another state). While applicants obviously may need to disclose potentially damaging past information as part of the application process, an applicant’s prior criminal record may also raise questions about the applicant’s character and fitness. See In re Gossage, 23 Cal. 4th 1080, 99 Cal. Rptr. 2d 130 (2000) (concluding that applicant convicted of voluntary manslaughter lacked the good moral character necessary to be admitted). According to the Tennessee Board of Law Examiners at least, this duty to disclose a past criminal record even applies to a conviction (other than a matter resolved as a juvenile) that has been expunged. See Tennessee Board of Law Examiners, FAQs, available at http://www.tnble.org/faq.

In a 2018 opinion, the court granted Simmons admission. In considering her application, the court declined to adopt a bright-line rule regarding the length of time necessary to establish rehabilitation. However, the court did consider research indicating that the vast majority of addicts who maintain their sobriety for five years never relapse. Simmons had been sober for six years by this point. There was also the matter of Simmons’ prior convictions to consider. The court noted that in cases involving reinstatement of disbarred attorneys, the court had required evidence that attorneys “have overcome the weaknesses that produced the misconduct for which they were disbarred.” In re Disciplinary Proceeding Against Hart, 118 Wn.2d 280, 289, 822 P.2d 264 (1992). In Simmons’ case, the court observed that while Simmons was incarcerated, she underwent treatment for addiction as well as its underlying causes and “also successfully developed a large, dependable support network and has proved her ability to effectively implement strategies minimizing any risk of future relapses, criminality, selfdestructive behaviors, or avoidable financial problems.” In the court’s view, all of this evidence “weighs heavily against the argument that Simmons’ misconduct is simply too recent, or that the number of years for which Simmons has maintained her sobriety is simply insufficient at this time.”

But what impact should one’s past criminal record have on the character and fitness determination? And at what point can an applicant be considered sufficiently “rehabilitated” to be admitted? Tarra Simmons is a convicted criminal and a recovering drug addict. In 2001, she was convicted of second degree assault. In 2011, she was convicted of organized retail theft, unlawful possession of a firearm, and possession of controlled substances. As a result of her criminal convictions, Simmons’ nursing license was placed on probationary status, she served a total of over three years in jail and prison, and she underwent two bankruptcies and a foreclosure on her home. While in prison, Simmons underwent treatment for her addiction and also received treatment for the source of many of her problems, namely the sexual abuse she endured as a child. After Simmons was released from prison, she attended the Seattle University School of Law. Stated simply, her performance was exceptional. She became the first student in her school’s history to be awarded a two-year public interest fellowship from the Skadden Foundation. She graduated magna cum laude in May 2017 and was a dean’s medal recipient. Recommendation letters from law school faculty and classmates as well as from her supervisors and colleagues also unequivocally stated that Simmons excelled and exhibited consistently ethical behavior in the five legal internships she completed during law school, in addition to the volunteer and advocacy work that she undertook for no course credit. When she applied for admission to the Washington State Bar, the Character and Fitness Board recommended that her application be

Ultimately, the Washington Supreme Court held that Simmons had spent enough in recovery to establish “by clear and convincing evidence that she is currently of good moral character and she is fit to practice law.” In the court’s view, Simmons is a “living example[] of a person’s ability to change if he or she has the will and opportunity to do so.” The Simmons decision has generated significant discussion. Putting aside the question of whether Tarra Simmons herself should have been admitted, the decision highlights other important points regarding the admissions and disciplinary processes. In support of its decision to admit, the Washington Supreme Court pointed to the fact that Simmons had been honest in her application, accepted full responsibility for her actions, and expressed remorse. The failure to be completely honest during the application or disciplinary process can, of course, be fatal. But there are also numerous instances in which the failure of a bar applicant or a lawyer facing professional discipline to accept full responsibility for his or her actions has doomed the individual’s cause. See State ex rel. Oklahoma Bar Association v. Kruger, 2018 WL 3029568 (Okla. June 19, 2018) (disbarring attorney who failed to express remorse or accept the gravity of his wrongdoing); In re Panse, 38 N.E.3d 298 (Mass. 2015) (concluding bar applicant lacked the necessary good character to practice law where he failed to express remorse or insight into his actions to assure the Board that he had the ability to comport himself in a civil and professional manner).

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. August 2018

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THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS

The 2018 Volunteers: A Football Preview Featuring

Timothy A. Priest

Pryor, Priest, Harber, Floyd & Coffey

Wednesday, September 5, 2018

11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive

Price includes Barbeque Chicken or Grilled Salmon, side item, salad & beverage. If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations. PRICE: $35.00 (Includes tax & gratuity) Enclose check payable to “The Knoxville Bar Association”. Mail/deliver check & registration form to: The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org. Please note that lunch will be served by 11:30 a.m.

WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: Melissia R. Ball Wade H. Boswell Tennessee Department of Human Services Andrea N. Brewer Tennessee Department of Human Services Monica M. Cacace Breeding Henry Baysan, PC Lindsay N. Hall Tennessee Department of Labor & Workforce Mitchell T. Harper Harper Law Office

Brett N. Mayes London Amburn, P.C.

Charles M. Torres Torres Law Firm, PLLC

Laura E. Metcalf Eshbaugh, Strange-Boston, Metcalf & Kern

Brennan M. Wingerter East Tennessee Appellate Litigation, PLLC

Chelsea B. Parrish Franklin & Kyle Elder Law, LLC

NEW LAW STUDENT MEMBERS

David F. Peeples Torres Law Firm, PLLC Kyle J. Ray Law Offices of Mayer & Newton Hammad Sheikh Law Firm of Hammad R. Sheikh, LLC

Marshall A. Jensen Benjamin G. Smith Kendra J. Mansur Tennessee Valley Authority – Office of the General Counsel

Jeff K. Spellerberg Law Office of Jeff Spellerberg

DICTA

Jacob E. Ankrom Duncan M. Bryant Cole Corder Aryn A. Grazioso Alexander Griffith Lauren N. Hughes Rachel H. Jensen Kendria S. Lewis Allan J. Parker Nikol D. Pluess Ariel Resnick Tyler T. Sims Olivia L. Spears Cody S. Walsh

August 2018

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on August 8, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on August 8, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: https://www.knoxbar.org/index. cfm?pg=Upcoming-Legal-Clinics The next Tennessee Faith & Justice Alliance Legal Advice Clinic will be on September 8, 2018 at Annoor Academy of Knoxville located at 100 13th St, Knoxville, TN 37916. In the Knoxville area, the program is coordinated by the KBA’s Access to Justice Committee, Legal Aid of East Tennessee, the UT College of Law, and the generous lawyers, law students, and others volunteering their time and talent. If you are interested in signing up for the Legal Advice Clinic, please register on the KBA’s website: https://www. knoxbar.org/index.cfm?pg=Upcoming-LegalClinics

August 2018

ATHLETICS The Barristers and the KBA joined together to co-host the annual four-person golf scramble on Monday, October 22, 2018 at the Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Regular Registration is $125 per player. Registration for Law Students & Attorneys Licensed 2014-18 is $100 per player. Registration includes green fees, cart, range balls, buffet lunch, water, sports drinks, and beer while golfing, commemorative tournament gift, other prizes & a complimentary reception following the tournament! The Athletics committee is still looking for sponsorships for this event. If you know of someone who would like to sponsor, please contact Jeremey Goolsby at JGoolsby@londonamburn.com or Bryce Fitzgerald at BFitzgerald@kramer-rayson. com. BARRISTERS CLE The Barristers will present a CLE entitled “The Legal Ethics of Better Call Saul: Professional Responsibility According to Saul Goodman” featuring Alex Long, U.T. College of Law and T. Mitchell Panter, Paine | Bickers LLP on Tuesday, September 18, 2017 from 5:30 - 6:30 p.m. at Schulz Bräu Brewing Company located 126 Bernard Ave. The CLE will feature a discussion of the legal ethical issues raised in the show ‘Better Call Saul.’ The interactive discussion will address such topics as confidentiality, conflicts of interest, the duty of candor, solicitation of clients, lawyer advertising, and any of the other many potential violations of the

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Rules of Professional Conduct committed by Jimmy McGill/Saul Goodman. This CLE is approved for 1 hour of Dual CLE credit. Register online by clicking on September 18 on the KBA Events Calendar. HUNGER & POVERTY The KBA Barristers Hunger & Poverty Relief Committee will host a School Supply Drive Event called “Brews for Backpacks” on Monday, August 6, 2018 from 5:45-7:45 p.m. at Printshop Beer Co. located at 1532 Island Home Ave. All donations go to benefit ChildHelp Foster Family Agency of East Tennessee. See the insert for details. MEMBERSHIP Barristers would love to thank everyone who came out to this year’s Summer Party. This year at the Candoro Marble Building, the Barristers were able to have a great time connecting with others in the Knoxville Bar. Our next Social Hour will be held in September, more details to follow. VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the KBA’s website at http://www.knoxbar.org/KBANews/help-volunteer-ministries.

B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting

AIBO - SONY ROBOTIC DOG As you know we really love our tech gadgets, but we love our pets too. If you have ever seen the Bill & Phil Show, you know that we always include something in the presentation that merges these two loves. Pet tech is a real thing. We told you about the Zencrate, an anti-anxiety, Wi-Fi enabled dog house that promises to keep your pooch in a techenabled state of Zen, with calming noises and vibration tamping, even during the fiercest of storms. And for those wayward pets who like to escape their master’s leash, we sampled the Kyon Pet Tracker, a fancy collar with a GPS tracker and barking silencer for the dog, and a special smartphone app for the master. And, of course, Bill loves his Litter-Robot III, a selfcleaning smart litter box for his kitties. So, all of this pet tech is wonderful. Wonderful if you actually have a pet, that is. What about the busy professional who lives in an urban environment, works weird hours, and travels a lot? Or an elderly person who physically can’t take care of a pet? Or even someone who has a pet allergy? Can technology supply a “pet experience” for someone who can’t (or won’t) take proper care of a live animal? Sony says so; we saw it on display at the last Consumer Electronics Show. Sony’s robotic dog, dubbed Aibo, is the perfect “companion” for the busy urbanite who wants to bond with a pet without all of the, uh, pet mess.

The demo we saw at CES actually involved two robotic dogs; the way they reacted to each other and played together really mimicked the interplay of real dogs pretty convincingly. But, of course, just like real pets, they can be unpredictable, such as when one of the Aibos inexplicably ignored one of the commands from its human master. Was that a misfire or just another typical prank that a real pet might pull? We’re not sure, but we think perhaps it was a misfire due to a spotty internet connection on the crowded exhibit floor. While Aibo is expensive and seems like a far-fetched idea for a pet replacement, we believe this revamped Sony project represents a new era that is growing quickly in tech gadgets -- robotics. Aibo demonstrates that it is possible to provide a rewarding companionship experience using robotics and AI. We expect we will see many more robots in the near future that can be used to help entertain/teach children and provide basic care and companionship for the elderly. With any luck, we’ll be able to retire with an army of robot pets and caregivers who can keep us company and provide us comfort well into our golden years.

We saw Aibo up close at CES, and the first impression is that it looks like a toy, which we guess it is. But once it becomes animated and begins to walk, run, wag its tail, look around, roll over, etc., you start reacting as you would with a real pooch. This “new” robotic dog is actually just a reboot from a model that Sony introduced back in 1999. That early model was probably ahead of its time, and it never really caught on. This new Aibo is a huge improvement, but it remains to be seen if it will be a hit with its $2,000 price tag and $25/month maintenance fee (nobody said robotic pets would be any cheaper than real ones…just more convenient). Sony is clearly hoping its new robot dog will demonstrate its commitment to be a major player in robotics and Artificial Intelligence (AI) technology. This technology gives Aibo its life-like characteristics. Aibo’s movement is more like a real dog due to enhanced robotics. She interacts and “grows” due to AI technology that is continually learning and updating the robot’s database of knowledge (thus the $25/month fee for maintaining your dog’s intelligence in the cloud). For example, Sony says Aibo can grow to recognize the humans who interact with it the most. Aibo has embedded cameras that enable it to navigate around obstacles in your home and to recognize familiar faces. Just like a real dog, Aibo responds to touch (like scratching its head or back). Also, like a real dog, Aibo gets “tired” and needs to rest. Actually the “tiredness” is brought on by a depleted battery after about 2 hours of play. But Aibo will cleverly navigate its way back to its charging base when he starts feeling lethargic, and, after “resting” on the charger for a while, he’s ready to play again.

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August 2018

WELL READ By:

Brooklyn Sawyers Belk

A REVIEW OF SHERYL SANDBERG’S

LEAN IN: WOMEN, WORK, AND THE WILL TO LEAD AND OPTION B: FACING ADVERSITY, BUILDING RESILIENCE, AND FINDING JOY

Sheryl Sandberg is Facebook’s Chief Operating Officer, LeanIn.org founder, activist, New York Times bestselling author, and one of the world’s most powerful women, with a net worth of about $1.56 billion. Time magazine referred to Sandberg as superwoman. Superwoman’s attributes are super strength, superspeed, invulnerability, and X-ray vision, and sounded a lot like Sandberg until she unexpectedly lost her husband, Dave Goldberg. Which begs the question, what does superwoman do without superman? She leans in to Option B. Sandberg published Lean In: Women, Work, and the Will to Lead in 2013, two years before her husband’s death shattered her world. In those “old days,” Sandberg had it all - a great marriage to her best friend, two healthy children, and an impressive career as a Silicon Valley superstar. Most women, and maybe men, would describe Sandberg as a badass - an apt reference used to describe Sandberg following her 2011 Barnard College commencement address. Sandberg, superwoman extraordinaire, kicked butts and took names, with an S on her chest. Accumulating massive wins with a Harvard MBA, stints as a Google vice president and United States Treasury Department chief of staff, Sandberg landed at Facebook. Building upon her leadership experience, Sandberg penned Lean In to encourage and inspire women to lean in to leading in every area of their lives. In Lean In, Sandberg examined women’s paltry progress in achieving professional leadership roles. Responding to that slow progress, she offered common sense tools and solutions for closing the gender leadership gap across professions. She provided practical advice on negotiation techniques, mentorship, and building a satisfying career while developing equal partnerships with life partners to share family responsibilities and lean in at home. She described steps women can take to combine professional achievement with personal fulfillment, and demonstrated how men benefit from supporting women in the workplace and at home. She challenged women to ask: What would I do if I were not afraid? And then instructed that the very thing you are afraid of is the thing to do. Lean In received national acclaim. The book rode The New York Times bestseller list for more than a year with millions of copies sold. Five years after its publication, The New York Times ran an article chronicling the book’s legacy, and profiled numerous women who identified it as changing their lives for the better. August 2018

Yet, in typical yin and yang fashion, criticisms offset the book’s acclaim. Sandberg anticipated and addressed some of the criticisms acknowledging that some critics would point out that her financial resources made her “lean in” easier than others, and that focusing on selfdirected change-pressing women to do the leaning in-failed to account for institutional sexism, letting the institutions off the hook. Despite recognizing that criticism from the outset, Sandberg continued to lean in to her work standing by her message. Sandberg could not have imagined the harsh backlash that followed. One of Lean In’s biggest critics, feminist author Bell Hooks referred to the work as “faux feminism” in her “Dig Deep: Beyond Lean In” article published in 2013. Her criticism and that of other feminists centered on the belief that Sandberg sees women’s lack of perseverance as more of the problem than systemic inequality, which is an idea that did not resonate well in feminist circles. Years later, grief struck, a grief unimaginable for Sandberg until Goldberg’s death. How to lean in when you cannot breathe became Sandberg’s day-to-day quandary. In her next book, Option B: Facing Adversity, Building Resilience, and Finding Joy, Sandberg described the pain and suffering from losing her husband and the need to press forward in undesirable circumstances. She explained the pervasiveness of the Imposter Syndrome, which simply put, is self-doubt and fear of being exposed as a fraud. That self-doubt plagued her life, leaving her with the inescapable conviction that she was an imposter, which caused her to stop believing in her capabilities. But, she pushed on with a continued leaning in and a focus on small wins. She asked again, what would you do if you were not afraid, and then instructed that you take one turn, and then another. This one-turn-at-a-time approach seemed to ease her Lean In press forward in all areas of your life all the time mantra, a concession that followed death’s aftermath. As an attorney, wife, mother, teacher, and other titles that are only important for biographical purposes, the books resonated with me. I acknowledge the critics make a compelling point regarding systemic inequalities that keep women and “others” (minorities in particular) relegated to the fringes of all businesses, including the often forgotten “McJobs.” But, to accomplish real sustainable change, those most impacted by the inequalities have to start somewhere, and why not start with the things you can control--lean in with all you have in every space you occupy. Fortunately, Sandberg balanced Lean In with Option B. For Sandberg’s followers, her immeasurable loss allowed her to walk a figurative mile in the shoes of women who did not have her privileges. The absence of financial resources, a non-existent capable partner, and the bombardment of “isms,” leave much of Sandberg’s audience with little, but self-doubt. Option B blended Lean In’s idealism with those harsh realities. I read, analyzed, and participated in a spirited book club that covered both books. I find Sandberg’s writing inspiring. Empowered by both, I leaned in and made changes in my own life and career to find Option B. What would I do if I were not afraid was more than a question, but a call to action. Lean In woke within me a hibernating bear from her slumber to accept that my own Option A is unavailable, so I must lean in to Option B. “Life is never perfect. We all live some form of Option B.” Some live Option B mourning the former, while others embrace change going confidently in the direction of their new dreams, living a new life that they could have never imagined. Now, go live yours-one turn at a time.

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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

BARBARA JOHNS DAY On April 23, 1951, a sixteen-year-old girl sent an official-looking memorandum to every teacher in her high school in rural Farmville, Virginia. The memorandum announced a special assembly. And it was, indeed, quite special, because it wasn’t official at all: neither the teachers nor the principal knew about it. At the appointed time, the girl stood and looked upon the African-American faces of her teachers and classmates. They looked back in surprise and confusion. The girl stepped forward . . . and called for a general student strike to protest the separate and completely unequal facilities they were forced to use. Then she walked out, taking much of the student body with her.

in state policy. In the wake of Brown, Virginia, like many Southern states, engaged in what it called “Massive Resistance” to public school integration. Virginia’s governor closed the schools in several cities, until courts ordered him to reopen them. Prince Edward County went even further: in 1959, it defunded its public schools completely. Without money, the schools had to close, and the county’s children had no access to public education at all. What did the children and their parents do? The answer depended upon race and social status. White children went to newly-formed white academies, ostensibly private schools that still received some public funding through various mechanisms, such as vouchers. Black children fended for themselves. No black private schools existed to accept the vouchers. Many African-American children had to move elsewhere to continue their educations. Those who were too poor to move, or too young, received no formal education at all.

The next day, the girl led a march to the local courthouse, where she and other student leaders met with the school superintendent. The leaders explained that their school, Moton High School, was designed for only 180 students, and yet had more than 400 enrolled, some of whom had to use unheated tarpaper shacks as classrooms. Unlike the nearby white school, Farmville High, Moton had no cafeteria, no gymnasium, no athletic field, and no science laboratories. The students demanded equal facilities. The superintendent told them nothing would be done until they called off their strike. They didn’t. Instead, the girl contacted the NAACP, which was willing to take the case, on one condition: the students had to modify their demands. The NAACP was not interested in separate but equal schools. It wanted an end to separate schools, which, it argued, were inherently unequal.

For five years. It was only in 1964 that another federal court ordered the schools reopened, so that children in Prince Edward County would be treated equally with students from the rest of the Commonwealth. In Griffin v. School Board of Prince Edward County, the Supreme Court, in an opinion authored by Associate Justice Hugo Black, held that the voucher system violated the Equal Protection Clause. It went on to say: For the same reasons the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia3.

The girl agreed, as did many of her classmates. Soon thereafter, the NAACP filed a claim on their behalf in federal court. Davis v. Prince Edward County1 was eventually combined with several similar cases from around the nation. On May 17, 1954, just over three years after the student strike, the United States Supreme Court ruled for the sixteen-year-old girl and her classmates as part of a decision commonly known as Brown v. Board of Education2. The girl’s name was Barbara Johns. If you’ve never heard of her, you’re not alone. Johns, like many of the early heroes of the modern civil rights era, came to the fight long before the television cameras showed up. But her unsung actions were crucial. Among all the cases that were consolidated in Brown v. Davis was the only one that arose from a student-led protest. Recently, I spoke with Lacy Ward, Jr., the founding Director of the Moton Museum in Farmville, on my public radio show. We discussed how the Commonwealth of Virginia has decided to recognize Barbara Johns’ unique contribution to the civil rights struggle with an official proclamation of a new state holiday, Barbara Johns Day, to be celebrated each year on April 23. The proclamation represents quite a change

Once she had set these great events in motion, Barbara Johns faded from public consciousness. After the Ku Klux Klan burned a cross in her yard, she moved to Alabama to live with her activist uncle, Vernon Johns. She attended college, married, moved to Philadelphia, and led a quiet life as a school librarian. She rarely spoke of her experiences in Prince Edward County, even to her family. She died in 1991, at the age of 56. Like Vincent Van Gough, she died in obscurity. But, like the great artist, her work lives on, and, finally, has received the recognition it deserves. Requiescat in Pace, Barbara Johns. 1 2 3

103 F.Supp. 337 (E.D. Va, 1952). 347 U.S. 483 (1954). 377 U.S. 218, 233 (1964).

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26

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August 2018

LONG WINDED By:

Jason H. Long London Amburn

POLITICS AS UNUSUAL The most devastating political attack ad of all time only ran once. It was considered so incendiary that the candidate airing the ad, Lyndon Johnson, was afraid it would backfire and draw votes away from his camp. Mind you, no one would ever call LBJ “squeamish,” but this ad was even too much for him to handle. Affectionately referred to as the “Daisy Girl” ad, it showed a young girl in a filed of daisies. She held a flower in her hand and was pulling off the petals as she counted each one. When she got to ten, the screenshot froze on her face and a military countdown began going from ten to zero. The camera gradually panned in on the little girl’s eye and when the official countdown reached zero, a nuclear explosion could be seen in the reflection of the girl’s pupil, followed by LBJ’s voice explaining that these were the stakes of the 1964 election: “we must all learn to love one another or die.” Although seen by only a handful of the electorate, the ad struck at the heart of middle America’s fears about LBJ’s opponent, Barry Goldwater. The concern was not just that he may be more likely to get us into a nuclear war, but that on virtually all issues he seemed so extremist as to be unstable. Goldwater was the man who famously said, upon accepting his party’s nomination for President “extremism in the defense of liberty is no vice and moderation in the pursuit of justice is no virtue.” As some of you may know, I am a huge fan of LBJ. However, I always liked Barry Goldwater as well. He was an honorable public servant who did a lot of good in his years in the Senate. I even own a copy of his book “Conscience of a Conservative” somewhere. However, he was polarizing in that 1964 election and, as any good political scientist will tell you, polarizing the electorate is no way to get in office or to govern effectively . . . at least it didn’t used to be. Goldwater lost that election by a huge margin (486 to 52 in electoral vote count). A number of factors led to LBJ’s landslide victory: The desire to continue the legacy of John Kennedy who had died a year earlier and LBJ’s popularity in most areas due to the passage of the Voting Rights Act were surely factors that nearly guaranteed a victory for the Democrats. Still, by putting up a candidate like Goldwater, inflexible and unwilling to compromise, the Republicans never really gave themselves a fighting chance. Something has changed and I’m not exactly sure when it happened. Concepts like compromise, moderation, and bipartisanship used to be valued and applauded, now they are rebuked and avoided. To compromise is to be weak. My liberal friends blame Reagan, Limbaugh, Gingrich and Trump. My conservative friends blame Clinton, Carville, Obama and Clinton again. I guess it does not really matter much at this point who started this polarization or when it started. The fact remains that our leaders no longer seek or need to appeal to a diverse electorate. Red states are so red that a Democrat can barely beat Roy Moore. Blue states are so blue that Anthony Weiner would still be a formidable candidate. August 2018

Our own gubernatorial election is a great example. Last week I saw an attack ad by one candidate (for anonymity sake we will refer to her as Diane White) which sought to educate voters that she was the only true conservative in the race and branding her opponents as “moderates.” When did moderate become a bad word? Inevitably, her ads will cause her opponents to take positions further and further to the right to establish their credentials as bona fide Republicans and they will have to say and do things they can’t take back in the general election or once they take office. The net effect will be a leader who represents only a small portion of the entire electorate and has no inclination or motivation to represent the whole. In fairness, I don’t resent the fact that Mrs. “White” is staking out her position as the most conservative candidate. I resent how successful that strategy will be and what it will mean for whoever takes office. President Trump is another good example of this new successful paradigm of polarization. He does a masterful job playing to his base and making statements or enacting policies which, not long ago, would have been deemed extreme. At the same time, he denigrates his opponents to the point that they won’t listen to anything that comes out of his mouth, but he doesn’t care because he does not need those people in order to govern. I don’t want to be unfair here. I pick out Republican examples because they tend to be in power here in Tennessee and nationally. But make no mistake, the Democrats can be just as effective at this type of divisive politics. I was never more disappointed in Hillary than when she referred to a large portion of the people she wanted to lead as “deplorables.” She rightfully paid a price for that. I have no doubt that the Democrats in New York and California are pushing those states farther and farther left just as we in Tennessee move farther right. As a Democrat it drives me crazy that people in my party cast blanket aspersions on everything President Trump says and does just as many Republicans think everything Obama did was bad for the country. Statistically, neither of those positions is possible. The polarization of American politics is not the fault of Republican candidates and it is not the fault of Democratic candidates, it is the fault of the electorate. Shrewd candidates are simply taking advantage of the way the game is currently set up. At some point, we have to decide if we are comfortable with Barry Goldwater candidates leading our nation. Until we decide we are not, get ready for a slew of campaign ads shunning the moderates, the compromisers, and those with the courage and strength to see two sides to an issue and try to bring people together. It’s gonna be a long campaign season.

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BARRISTER BITES By: Angelia M. Nystrom, JD, LLM Executive Director of Specialty Programs Office of Institutional Advancement, University of Tennessee Institute of Agriculture

BACON MAKES EVERYTHING BETTER Some of my earliest memories are of food…but not necessarily the food itself. Instead, those memories are of sharing food with family, whether it be at dinner, at a holiday gathering, at a family reunion, or one of the homecoming celebrations at church. I can still remember the way that my Aunt Jessie’s fried chicken tasted and the smell of my great grandmother’s homemade yeast rolls. I can almost taste my grandmother’s dressing if I close my eyes and think about it. I recall the birthday cakes that my mom made for us and for family friends, and the smell of my dad’s coffee every morning. There is something about food that brings a plethora of pleasant emotions. I remember my childhood fondly, and food played a large role in that. In those days, I was the willing consumer of the food; however, it was not until law school that I discovered that a big part of the joy of a meal was in the preparation. As a first-year law student at Mercer, I was homesick, and I realized that I could relieve those feelings of loneliness by cooking. I became famous in law school for my turkey, dressing and mashed potato dinners on Sunday night. I would bake a turkey, make dressing, and prepare my famous “yellow mashed potatoes.” (They had at least one stick of butter. To quote my roommate, “Who knew that potatoes turned yellow?”) My friends and I would enjoy the meal, talk about class and pretty much everything else, and then clean up together. It was during those times that I realized the true power of food and the sharing of a meal. As the years have gone by, I still take great pleasure in preparing a meal. In fact, if I were not a lawyer, I think I would want to be a caterer (or at least a party planner). I love to prepare a fancy meal or dessert and then have friends and family over to eat. It is cathartic, and I hope that my child has the same happy memories that I have related to food and the sharing of a meal.

My next experiment involved hot dogs. I came up with the idea of wrapping Benton’s smoked bacon around hot dogs and then grilling them for our annual Memorial Day cookout with the neighbors. If you have never had a Benton’s bacon wrapped hot dog, you are missing out. They are especially good with mustard and a little bit of chili. Since that time, I have used Benton’s bacon in Brussels sprouts, to wrap green beans into green bean bundles, and on top of beef filets and turkeys. I have even used the grease to season my Lodge skillet, make marinade for beef tenderloin, and to season homemade croutons. The best preparation, however, is the easiest. I’ve become known in our neighborhood for my candied bacon. It is our Saturday morning breakfast go-to, and it is my appetizer of choice for neighborhood parties. Last year, I made 4 lbs of it for the neighborhood Christmas party. It was gone in less than 15 minutes. It’s true—bacon makes everything better. To make candied bacon, I use Benton’s hickory smoked bacon. To prepare it, preheat the oven to 350 degrees. Place a cooling rack in a cookie sheet (with sides so the grease does not spill), and coat the rack with Pam or some other sort of cooking spray. Place bacon strips on the cooling rack and sprinkle light brown sugar over the top of the bacon. Place in oven for about 20 minutes or until crisp. Cool and serve. It is that easy. I’m not the only lawyer who possesses either a love for cooking or culinary skills. Facebook has turned me into a food voyeur. I’ve seen a number of you post photos of food that you are preparing and photos of you enjoying a home-cooked meal with family and friends. Going forward, Barrister Bites will highlight our members who have a passion for food. I’ll be calling on you to get your thoughts on sharing a meal, favorite foods and tips to our members on preparing.

f you are a chef (or even a wannabe-chef ), please let me know. I would love to feature you and share your favorite foods and information on how to prepare them.

As many things as I enjoy preparing, I’ve become known for one particular food item: bacon. I love Benton’s hickory smoked bacon, and I love to create dishes using it. I first discovered Benton’s bacon when Hugh and I moved back to Knoxville in 2006. He brought home a package and told me that, much like him, it would change my life. He was right. My first foray into bacon prep was the old-fashioned way: I fried it in a skillet on the stove top. As good as it tasted, I hated the mess that it made. More than that, though, I hated when it popped and burned my hands and arms. I decided that there had to be an easier way.

There is power in food, and there is power in sharing food. I look forward to featuring our members with special culinary talents, and I look forward to sampling some of those famous creations. Happy Eating!

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August 2018

BENCH AND BAR IN THE NEWS

How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. TIPPETT RECEIVES NATIONAL CERTIFICATION IN CONSUMER BANKRUPTCY LAW Hannah Tippett, an attorney at the office of Mostoller, Stulberg, Whitfield & Allen in Oak Ridge has successfully completed the requirements for national certification in Consumer Bankruptcy Law. Besides bankruptcy, Ms. Tippett practices law in the areas of social security disability and conservatorships. She is a 2009 graduate of the University of Tennessee, College of Law, J.D. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. ELBERT WILLIAMS FIRST TO DIE – AUGUST 24TH PROGRAM FEATURING JIM EMISON Elbert Williams was the Director of the first NAACP office in Tennessee. Evidence suggests he was murdered. At noon on August 24th, retired civil rights attorney Jim Emison will share his investigation which is the basis for his upcoming book. Attorney Emison will also discuss the new Tennessee Civil Rights Cold Cases Act. The program is sponsored by the LMU Duncan School of Law and the Community Economic Development Network of East Tennessee (CEDnet) along with partners East Tennessee Foundation, Knoxville Area Urban League, and Beck Cultural Center. The program will be held at the LMU Duncan School of Law. Save the date - reservation details, lunch and additional information will be released soon.

August 2018

VOLS FOR VETERANS – GEN. CLIFTON CATES LEADERSHIP SCHOLARSHIP DINNER The 1st Annual Gen. Clifton Cates Leadership Scholarship Dinner on Thursday, October 11th will raise money for a student scholarship fund at The UT College of Law and will honor the memory of a true Tennessee Volunteer hero, General Clifton B. Cates, USMC. The dinner will be held at Cherokee Country Club. For more information and tickets, please visit our Facebook and Instagram page @volsforvets. MEMORIAL SCHOLARSHIP The Spenser F. Powell Memorial Law Scholarship was established by family and friends of Spenser after his unexpected passing on May 29, 2018. Spenser excelled academically at the UT College of Law and was named Outstanding Graduate of the Class of 2017. He served as an Executive Editor of the Tennessee Law Review and Vice-Chair of the Moot Court Executive Board. After graduation, Spenser began his clerkship with Chief Judge Thomas A. Varlan for the US District Court for the Eastern District of Tennessee. To continue Spenser’s legacy of academic excellence and exceptional character, his family and friends have established the Spenser F. Powell Memorial Law Scholarship through the East Tennessee Foundation, a 501(c)(3) organization. The scholarship will be awarded to an incoming first-year student at the UT College of Law who exemplifies Spenser’s academic and social values. Further information about the scholarship’s structure and goals may be found online at: http://spenserfpowell.org/. The scholarship is accepting contributions online and through the East Tennessee Foundation. PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, August 9, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Heidi Barcus, Esq., with London & Amburn Law Firm, will be presenting Prison Health. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or 865-2153676 for additional information and/or lunch reservations. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and

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other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE: •

Class A office space for rent in Bearden! The office is a total of 1342sq feet which includes six offices, two conference rooms, a kitchen, three storage areas, and a reception area. The space can be rented as a whole, or by the individual office. Utilities are included, however phone and internet would be the responsibility of the tenant. Contact Meghan Bodie at 865-539-3515 or meghankinglaw@gmail.com for more information.

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Fully Furnished office space available at Bank of America Building; 2 window offices available; 3 interior offices available with cubicle space attached to each interior office; Accessibility to two large conference rooms, full kitchen, and patio area overlooking the TN river; Full lobby area with a receptionist to greet clients; Aggressively priced, 2 parking cards may be available. Call Lance Baker if interested. Office number is 865-200-4117 and cell phone is 865-310-0997.

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Shared office space available for one to two attorneys in Farragut. Convenient location right off Kingston Pike. A small office space for support staff is available, as well as a shared file room, conference and reception areas. Contact Jerry Martin at 777-2700.

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3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.

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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System

PRO BONO PROJECT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

WHY YOU DO PRO BONO Each month, members of the Knoxville Bar Association and attorneys from surrounding counties answer my calls for volunteers. When asked why they volunteer or what their favorite experience with a Pro Bono client has been, four regular volunteers put it in words better than I could. Josh Hedrick, who serves as Legal Aid’s Pillar Law Firm for driver’s license reinstatements, stated, “The difference it makes to the client is so much greater than the cost to me of volunteering.” Hedrick has assisted nearly twenty clients navigate the process of getting their drivers’ license back in the last year-and-a-half. For many of LAET’s eligible clients, having a valid driver’s license is a necessity for daily life. If they do not have a driver’s license, they often cannot find work and, therefore, cannot pay for housing. Ian Hennessey explained,

“T

he legal profession is, at its core, about serving others and putting their needs first. At the same time, being a member of the legal profession puts us in a place of immense privilege in our society.” Hennessey, who joins with Bill Coley to coordinate several Faith & Justice Alliance Legal Advice Clinics with local faith leaders and LAET, continued, “I love serving my everyday clients, but it is especially fulfilling to serve and to utilize my privileged place on behalf of those who could not do so on their own.” Finally, Hennessey noted, “I wish I volunteered more.” Hennessey said that his favorite Pro Bono case was representing an elderly widow who had her car essentially destroyed by a mechanic who added insult to injury by overcharging her. The client had owned her car for twenty years and kept impeccable records of all maintenance done on the car. Hennessey said that “with the help of some benevolent mechanics and mechanically-minded attorneys (Andy Tillman)” the client ultimately received her money back plus compensation for her car. This client was so happy with the outcome of her case and the work done by Hennessey that she made a significant donation to LAET. Jason Collver, the Access to Justice Coordinator for UT Pro Bono at the University of Tennessee, acknowledged that sometimes he cannot assist a client beyond giving advice at a clinic, but noted that

He explained that clients who attend the clinics often simply need advice about how to proceed with their issue and that providing them with information about the steps they need to follow helps to give them peace of mind. Daniel L. Ellis, who serves as Co-Chair of the KBA’s Access to Justice Committee with LAET’s Deb House, shared the story of a client he assisted through Saturday Bar. This client also needed assistance related to his driver’s license. Ellis explained that the client needed help getting a habitual motor vehicle offender designation removed from his record so that he could work towards getting his license reinstatement. The client was terminally ill and, unfortunately, passed away before he got his license reinstated. However, he knew that it was possible for him to get his license back and regained a sense of dignity with that knowledge. Ellis described the client carrying the $210 he needed to reinstate his license with him to medical treatments because he knew he now had the chance for redemption. Ellis believes this made a positive difference in the client’s life before he passed. There are dozens more attorneys in our local bar or donate their time to assist LAET’s Pro Bono Project clients every month and, although they may each have a different reason for donating their time, each and every one of them makes a difference for those they assist. The bottom line is that doing Pro Bono work is a personal decision that will pay off both for your clients, but also for yourself. Thank you for all of the great work you all continue to do for members of our community who most need your assistance.

“T

he best part of providing Pro Bono service to a client is seeing the client feel heard and empowered.”

Mark Your Calendars: * August 4 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knox County office * August 8 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO * August 11 (9:30-12:00) – Debt Relief Clinic at the Public Defender’s CLO * August 18 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office _______________________________________

Want to Volunteer?

* September 8 (9:00-12:00) – Faith & Justice Advice Clinic/Knox County Saturday Bar at Annoor Academy (724 Foxvue Rd., Knoxville 37922)

Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFS

* September 12 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO

Save The Date:

* September 22 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office

Forging Justice Pro Bono Celebration October 19, 2018 - Ironwood Studios

* September 26 (2:00-4:00) – Pro Se Divorce Clinic at LAET’s Knox County office

Contact Kathryn Ellis for information about sponsorship

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

DICTA

August 2018

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Justice Page, it’s the summer, and it’s baseball season. Please tell DICTA’s readers about your love of baseball and some of your favorite reminiscences about baseball.

THE HONORABLE ROGER A. PAGE, TENNESSEE SUPREME COURT

I am a great baseball fan. My older brother is eight years older than I am, and he loved baseball. So did my dad, and they helped create my interest at an early age. When I was a little kid, I was ambidextrous and uncertain about batting right-handed or left-handed. My dad and brother both said, “Try to bat left-handed, you are two steps closer to first base,” which I did. I learned to throw right-handed but batted lefthanded. The only problem is that I wish that they had also kept me batting righthanded because I always had problems with left-handed pitchers. I grew up on a farm. I was not really big enough to play football, and in the fall, I was always really busy with helping my family at harvest time. When I was eight, I started playing Little League. My dad told me that if I made the high school baseball team, I could do that in the springtime instead of working in the fields—that’s how much my dad loved baseball-so I immediately started working harder in practice to make the baseball team. I played high school baseball for 4 years. In the summers, we played Babe Ruth and Senior Babe Ruth baseball. I did receive one offer to play college baseball. I sometimes regret that I chose a different path. Back in the ‘60s in West Tennessee, many little communities had baseball teams. Everyone would go to church on Sunday morning, then go out and play or watch a baseball game on Sunday afternoon. Everyone would then go back to church on Sunday evening. My dad was 29 when I was born, but he was still playing baseball. I remember watching him play when I was little, and then, he became the coach of the team. That kind of tradition had pretty much stopped in the late ‘60s or early 70s. I don’t really know why; I guess people just got too busy and had other things to do. I also think a lot of people began playing slow-pitch softball. I saw a documentary recently about Mount Rushmore. It occurred to me: if we were going to put four baseball players on a memorial like Mount Rushmore, who would they be? In my opinion, it’s easy to choose three, but the fourth one is very hard; the fourth would have to be a pitcher. For the “easy three,” Babe Ruth would have to be honored; you must have Henry Aaron; and the third person, the best who ever lived, is Willie Mays. He is fifth on the all-time home run list with 660 home runs; plus, he was a great outfielder and a great base stealer; he was just really smart about everything. I remember one of my favorite anecdotes about Willie Mays. I am a big Giants fan. I don’t care much for the Dodgers but for some reason, I’ve always liked Walter Alston and Tommy Lasorda, the Dodgers’ managers. Don Drysdale was pitching for the Dodgers against the Giants; first base was open, a runner was on second, and Walter Alston held up four fingers to walk Mays. Drysdale hit Willie Mays in the middle of the back. Alston called time and yelled at Drysdale: “What are you doing?” Drysdale replied: “Saving three pitches.” “Now you’ve made him mad!” Alston yelled back.

Of course, later on, Mays hit a home run to win that game. The fourth one for the monument is the trickier one; you’d have to have a pitcher. I thought about legendary pitchers Christy Mathewson and Walter Johnson, but I think I’d pick Greg Maddux. I’m not a Braves fan, but Maddux taught us all that you don’t have to be an outstanding athlete to be a great pitcher. He could just paint the corners with his pitches. It was phenomenal to watch him: he could pitch nine innings many times with eighty or ninety pitches. Kids now are so into other things, like video and computer games; you just don’t see kids picking up baseball. When I was a kid, for about a month or so each summer, we often didn’t have a lot to do. On weekdays, we’d leave home with our gloves – whoever had a bat would tie it on a bike – and we’d meet and play in the pasture. We’d have lunch at someone’s house – whoever would feed us all!--and we’d play until 5:30 or 6:00. I lived ten miles from the nearest town, which was Henderson, but within two miles of my house, there were enough kids to play a game of baseball. We didn’t always have nine kids on a team – sometimes, it was just five or six--but we’d play all the time, and that is how you develop your skills at a game like baseball. We talked about Willie Mays; another one of my favorite players was Ernie Banks, a really positive guy, whose famous saying was “It’s a great day for a ball game; let’s play two!” The first pro baseball game I saw live was in Chicago in 1969. My uncle had a construction company, and my brother, who is a big Cardinals fan, was working for him during his summer vacation from college. Lou Brock had been traded from the Cubs to the Cardinals in 1964. As Brock came up to the plate, my brother said, “This is the greatest base runner who has ever lived! Watch this guy.” Brock got a base hit and stole second base. He was promptly picked off second. Lou Brock is a Hall of Famer and great player, but I never let my brother forget that his favorite Cardinals player was picked off second base. People wonder how somebody from West Tennessee became a Giants fan. I started watching baseball when I was 5 or 6 years old, when you only had one televised game on Saturday. Everybody else around here supported the Cardinals: St. Louis was close, plus Tim McCarver and Phil Gagliano were Memphians who played for the Cardinals. Of course, I had to be different. In 1962, the Giants were 3-4 games behind the Dodgers and caught them in the last week; the Giants won the playoff with the Dodgers and got into the World Series. It was three games to three against the Yankees; the Giants were down, a couple of runners were on base, and Willie McCovey was up. He hit a line drive--a real screamer--but the Yankees’ second baseman Bobby Richardson caught it to end the Series. After that, I fell in love with the Giants. They had last won the World Series in 1954. They had some good years in the ‘70s but could never win a pennant. I never thought I’d see them win a World Series. They lost to Oakland in the “Earthquake Series” of 1989; in 2002, in the Series with the Angels, the Giants were up 3 games to 2 and then blew the next game and the 7th game. Finally, in 2010, they won a World Series, and they did it again in 2012 and 2014. I hope they win a few more titles soon.

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com. August 2018 DICTA