December 2019 - Volume 47, Issue 11

Schooled in Ethics: The Ethics of Soliciting Online Client Reviews . . . Page 13 Legal Update: Tennessee’s Firearm Carry Permit Laws: Neither Unusual nor Common . . . Page 14

A Monthly Publication of the Knoxville Bar Association | December 2019

A Lawyer’s View of the Presidential Impeachment Process

BARRISTERS ANNUAL CHARITY GOLF TOURNAMENT OCTOBER 21 On October 21st, 24 teams participated in the Barristers Annual Charity Golf Tournament at Holston Hills Country Club. Money raised through the generous support of participants and sponsors, will support the Barristers charitable activities of the Hunger & Poverty Relief Committee. The Barristers Athletic Committee would like to thank all of the golfer and our sponsors for their support.

Congratulations to our Winners: 1st Place: 2nd Place: 3rd Place: Club Level Sponsors Hole Sponsors Mark Bragg Scott Elmore Melanie Wilson LexisNexis Attorneys Insurance Mutual of the South Inc. Tom Johnson Scott Ellis Alex Long Thomson Reuters Brandon’s Awards & Engraving Skee Orr Bret Meyers Taylor Smith Putting Green Contest Sponsor Dennis Carper Billy Cox Brian Krumm Eldridge & Blakney, PC Cornerstone of Recovery Gary Cobble, Construction Liquid Gold Sponsor Closet to the Pin Winners: Longest Drive: Putting Contest: Consultant Yee-Haw Brewing Hole #4: Bret Meyers Tripp White Kasey Ankrom Gibson Court Reporting Hole #8: Alex Long Silver Sponsors Hodges, Doughty & Carson Hole #11: Norm Templeton Image Matters Kramer Rayson LLP Hole # 14: Melanie Wilson NovaTech LBMC Pitts & Lake, P.C. PrintEdge Pugh CPAs Regions Private Wealth Management Swafford Insurance TCV Trust & Wealth Management Woolf McClane Bright Allen & Carpenter

2

DICTA

December 2019

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

December 2019

16

A Lawyer’s View of the

Presidential Impeachment Process

CRITICAL FOCUS

President Wynne du Mariau Caffey-Knight

President Elect Hanson R. Tipton

Treasurer Cheryl G. Rice

Immediate Past President Keith H. Burroughs

Secretary Jason H. Long

KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford

Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller

T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe

The Knoxville Bar Association Staff

5

President’s Message

6

A Community’s Response to the Opioid Crisis

9

Management Counsel: Law Practice 101

12

Judicial News

14

Jonathan Guess Database Administrator

Leslie Rowland 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

Rebecca Eshbaugh LRIS Assistant

Volume 47, Issue 11

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).

publication of the Knoxville Bar Association

Publications Committee

December 2019

Legal Update

Tennessee’s Firearm Carry Permit Laws: Neither Unusual nor Common

Hello My Name Is

18

19

21

22

President-Elect Hanson Tipton Katie O’Neal

The Grammar Grinch

Christmas in Quotation Marks

Vite et crede

Consent Required

Of Local Lore and Lawyers

Paul Y. Anderson: Witness to the Law

Legally Weird

Cellino & Barnes, the Off Broadway Play

The Elevator

24

25

27

DICTA

The Ethics of Soliciting Online Client Review for Referral Fees

10

Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho

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

Schooled in Ethics

Attorney Profile

Managing Editor Marsha Watson

KBA Executive Director

Fair and Impartial Courts

WISDOM

Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

The New DOL Overtime Regulations

7

23

Dicta is the official

Practice Tips

11

13

Tammy Sharpe CLE & Sections Coordinator

Reason for Hope

Pagans, Prayers, and Preachin’:

Navigating Religion in the Workplace

Marsha S. Watson Executive Director

Our Journey around the Sun

26

28

Outside My Office Window Around The Bar

The Tennessee Law Lab, the State’s First Law Incubator, Celebrates its First Year

Well Read

Book Review: Evicted: Poverty and Profit in the American City

Your Monthly Constitutional Our Founding Scoundrel

Long Winded

Lock Him Up (George Bailey Christmas Edition)

Barrister Bites Barrister Brews

COMMON GROUND

4 20 20 29 30 31

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

3

SECTION NOTICES & EVENT CALENDAR

event calendar

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. To have your name added to the section list, please contact the KBA office at 522-6522.

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediation - Practice & Ethics Update” on December 9 featuring Chad Hatmaker. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year.

Join the Bankruptcy Law Section for the CLE program “Bankruptcy Case Law Update” on December 10 featuring Tom Dickenson & Greg Logue. The next Pro Bono Debt Relief Clinic will be held on February 8 and volunteer registration is available at www.knoxbar.org. If you have a 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. If you would like to know how you can get involved or have suggestions for CLE topics, 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. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, 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. 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 Catherine Anglin (525-0880) and 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. Join the Family Law section for the CLE program “TN Family Law Update” on December 3 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Section The Government & Public Service Lawyers 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 to know how you can get involved or have suggestions for CLE topics, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. 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 2017 will automatically be opted-in to the section. Save the date for the inaugural event for 2020 which will be held on January 31. Our guest speaker for the event will be Mitchell Panter, Lewis, Thomason, King, Krieg & Waldrop, P.C. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228).

Senior Section The KBA Senior Section will meet next on December 11, 2019 at Calhoun’s on the River. The program title is “Russian Propaganda and Social Media Targeting American Voters: An Update for 2020 Presidential Election” and will feature Natalie Manaeva Rice, Center for Information and Communication Studies, University of Tennessee. Learn about ongoing Russian influence on campaigns targeting American & European elections. 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. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioners & Small Firms Section The goal of the Solo Practitioner & 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 Practitioner & Small Firm Section for the CLE program “Legal Slide: An Attorney’s Guide to PowerPoint” on December 18 featuring Samantha Warchol. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

4

DICTA

n n n n n n n n n n n n n n n n n n

n n n n n n n n n n

December

3 Law Office Tech Committee Meeting 3 Family Law Section CLE 5 Legislative Committee Breakfast 6 Ethics Bowl CLE 9 ADR Section CLE 10 Professionalism Committee Meeting 10 Bankruptcy Section CLE 11 Senior Section 11 Veterans Legal Advice Clinic 11 Barristers Elections 12 Lunch & Learn 12 Judicial Committee 13 Annual Meeting & Elections 17 Diversity in the Profession

Committee Meeting 18 Solo/Small Firm Section CLE 19-20 Video Replay CLE 26-27 Video Replay CLE 30-31 Video Replay CLE

January 7 8 8 8

9 14 15 23 28 30

Law Office Tech Committee Meeting Veterans Legal Advice Clinic Barristers Officers Planning Meeting Diversity in the Profession Committee Meeting Judicial Committee Professionalism Committee Board of Governors Meeting Bar Leaders Event CLE Committee Meeting New Lawyers Section Event

Mark Your Calendar KBA Annual Meeting & Elections December 13 December 2019

PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC

OUR JOURNEY AROUND THE SUN

The tradition of the KBA annual meeting is fast approaching. I was not merely fortunate, but blessed, to begin my career among lawyers for whom relationships with other lawyers was paramount. And that meant, among many things, attending the annual meeting on a Friday morning in mid-December. There were not as many networking and social gatherings then as the KBA now offers, so the meeting was a real opportunity to connect with people you might otherwise see infrequently.

While it marked the end of our bar year, in some ways the meeting kicked off the holiday season. We gathered in our overcoats after a brisk walk in the cold morning air to shake hands, catch up, and then get about the business of the association, with the annual reports and the election of new leadership. It truly was, and is, a tradition in the life of a KBA lawyer - a custom transmitted from generation to generation of lawyers.

When taking the office of President at this time last year, I talked of having come full circle in bar association life. As our circumnavigation of the sun together nears its completion, I reflected with some real focus over the past year. I can genuinely say I was never so struck with such clarity just how much living we manage to pack into such a short span.

Just think of only a few of the smallest things that make up the whole each conversation, meal prepared and eaten, errand checked off the list, chore completed, letter or email, mile driven, dog petted, morning cup of coffee on the porch, dip in the water, book read, tear dropped, smile, birthday, wedding, funeral, word uttered or heard, touch, gift given, gift received, flower admired, change in weather, worry, fear, prayer and blessing. The tapestry is so incredibly detailed.

I

drew national recognition for the KBA. The need for attorney wellbeing sparked our first Wellness Expo, which also tackled this issue in a judgment-free, eyes-wide-open manner. The column ends this month with Dr. Stephen Loyd’s message of recovery, redemption and hope.

With the approaching annual meeting, I have a number of other traditions that begin to ramp up at year’s end – beginning with Richmond’s and Maegan’s birthdays in near back-to-back succession just before Thanksgiving, then Christmas, with Dalton’s and Hunter’s birthdays right on the heels. Needless to say, I resort to list-making. If you were to look on my laptop under “My Documents: My Personal: Miscellaneous: Christmas 2019” you would find a multi-columned, multi-page list of ideas and to-do’s for menus, correspondence, interior and exterior decorations, donations, gifts, and more.There is a similar one for each of the past 15 years. Older ones were hand-written.

If only my children had known about this list and my password, they could have saved themselves a lot of time and trouble poking around in closets and cabinets and car trunks. A questionable tradition has been Waffle House for breakfast after Christmas Eve Midnight Mass. That one has been rather interesting with the kids when the service has fallen on a Friday or Saturday night. Suffice it to say, they’ve engaged in some entertaining repartee with other patrons. Talk about making memories.

This time of year places a huge emphasis on gifts. What gift do you wish for – to give or receive? I wish for those same three things that rested on my heart when this presidency began. And in doing so, I look not to the past, but to what comes next.

I wish to continue leading and living with a servant’s heart to help others be their best selves. This will bring me joy. I wish for a return to civility in our public discourse, particularly heading into 2020 as even the mettle of our best selves may be tested. And my last wish arises from the battle against the opioid crisis and addiction in general. I asked Dr. Loyd what his answer for us might be. He said, “The main thing I would want lawyers to know is the path people take is highly individual and we have to be willing to use all tools at our disposal with as little judgment as possible.” So, my wish is that we will be ever vigilant for the sake of our loved ones, coworkers, colleagues, and community. Please continue the conversation.

wish to continue leading and living with a servant’s heart to help others be their best selves.”

Our Bar year has been equally full as its circle closes. Marking our profession of service to others, we began with the Golden Gala honoring our colleagues licensed 50 (and 60, and even 70!) years, through the swearing-in of our newest lawyers and the Memorial Service celebrating the lives of those who enriched ours. Along the way, we had a sell-out Law Practice Today Expo with Mayor Glenn Jacobs whose remarks left nary a dry eye in the house, a visit with legislators in Nashville, celebrating freedom of speech and of the press on Law Day with author Keel Hunt, the Supreme Court Dinner with a standing ovation for the inspirational Vicki Clark, the largest ever attendance and buddy-match for the Diversity & Inclusion Program and Reception with Janice Brown, an interprofessional mixer with Coach Kellie Harper, a hugely attended New Admittees and Member Appreciation Event, and hosting our local legislators for breakfast at home in Knoxville. Sprinkled throughout all that were countless committee and section planning meetings and programs, access to justice events, community service projects, this tremendous DICTA publication, and just plain fun social gatherings.

Together we took a dark topic head on – the opioid crisis. The column The Opioid Epidemic: A Community’s Response tried to answer the question I posed last December: What can or should we do? This full circle look shared perspectives from the District Attorney’s office, the judiciary, a father, a childhood friend, a police officer leading the overdose death task force, rehabilitation providers, children’s healthcare providers, and prevention efforts of the Metropolitan Drug Coalition. This series

December 2019

I am beyond grateful to all the Board Members, committee and section chairs and members, and the KBA Staff, Marsha Watson, Tammy Sharpe, Tracy Chain, Jonathan Guess and Leslie Rowland. Your contributions to this year are too numerous to recount.

Thank you to my law partner Scott Elmore, and the other members of my firm Alicia Teubert, John Rice, Leslie Elmore and Kellie Beerbohm for your encouragement and sharing of my time elsewhere.

And thank you especially to my husband, children and siblings for your patience and letting me share glimpses of our life in these messages – you’ve loved me well.

My biggest thanks are to each of you for this past year and for permitting me to serve as President of this exceptional association.

DICTA

5

A COMMUNITY’S RESPONSE TO THE OPIOID CRISIS By: Stephen Loyd, M.D.

REASON FOR HOPE

On the way home from my job as Chief Resident at our local VA Medical Center, I stopped at a red light. I was in my last year of training as an Internal Medicine resident. I was a few months away from realizing my dream of becoming a doctor and taking a job as an Assistant Professor of Medicine in my hometown in Northeast Tennessee. That day, the world seemed to be closing in on me. I was sleep-deprived, I was not happy in my marriage and I feared practicing medicine outside of the safety of a training program. I opened the glovebox in my truck and saw some Vicodin (hydrocodone) that I had left over from a dental visit months before. I grabbed one (5 milligrams) and broke it in half (2.5 milligrams) and popped it in my mouth. By the time I got home less than twenty minutes later, my problems seemed to melt away, I had energy and my outlook was vastly improved.

I had no idea that my past struggles with alcohol and my history of physical and sexual trauma placed me at risk to misuse the pain pill that I had just taken. Keep in mind, I was in my last year of training to become an Internal Medicine physician. I had been in school for seven years post-college and I understood almost nothing about addiction or the medication that we were prescribing very freely in the late 1990’s and early 2000’s.

everything – my wife, my kids, my house, my cars, my job. My Dad said, “none of that stuff is going to do you any good if you’re dead.” I still haven’t come up with a good retort to that statement. He was right.

Because of my profession, I was lucky enough to receive ninety days of high-quality inpatient treatment at a place called The Center for Professional Excellence (CPE) in Nashville, which specialized in the treatment of physicians with substance use disorder. A guy named Chip Dodd saved my life. He helped me deal with the realities of my abusive past and taught me a new way to live. I had to confront many unpleasant facts about myself. I had to take ownership of my past and commit to a new way of living. I was so fortunate to get help with the physical and sexual trauma that had ruled my life for more than thirty years. I received five years of aftercare and follow up with random urine drug screens via the Tennessee Medical Foundation and their two wonderful medical directors, Dr. Roland Gray and Dr. Michael Baron.

My whole life changed. I couldn’t believe I could get through the day without using pain pills. My family life blossomed. I was a much better husband and father, but most importantly, I was present. My career skyrocketed. I went on to become Chief of Education and Chief of Medicine at my medical school.

Three years later, I was using upwards of 500 milligrams of pain pills per day – that’s one hundred Vicodin every day. All the while, I was teaching in medical school (I won three awards for teaching during this time) and I was the top producing physician in my practice. While under the influence of massive doses of pain pills, I was taking care of patients in the hospital, including the Intensive Care Unit. I looked great on the outside, but I was dying on the inside.

About a decade ago, I wanted to help others and give them the chance I had been given. I learned everything about addiction that I could, and I transitioned into a full-time addiction medicine physician.

I take care of pregnant women with opioid use disorder as well as others struggling with all types of addiction. I share my own experience, strength and hope with each of them and I try to meet them where they are, no matter what, with no judgment.

I knew I was taking high levels of opioids daily and that I could cease breathing at any time, but I couldn’t stop. I got deathly ill from withdrawals. I did manage to get through the withdrawals on several occasions, but the cravings took over and I’d go right back to taking pain pills. I couldn’t live with them and I couldn’t live without them. I stole pills out of people’s medicine cabinets. I hit up my physician friends for prescriptions for pain pills. I bought pills. I went to bed half of the time praying to God that I wouldn’t die in my sleep and half the time praying to God that I would die. There was no escape. I didn’t know anyone could help me and I didn’t want to ask because I thought I’d lose everything I had worked for in college and medical school.

Daily, I am honored to be a part of watching people change their lives. I see miracles daily. I know what is possible and I never give up on anyone. I love my wife and my family and my job is my passion. I want to give everyone struggling with addiction the same opportunities that were given to me.

I have a mission statement that I live by daily – to help as many people as possible into recovery from addiction. That’s it. I don’t care about the path; I care about the outcome. I want others to know life fully lived is attainable. Jesus said to love your neighbor. To me, this is what He means.

My low point happened on vacation to Orange Beach, Alabama.

We vacationed there with friends and their young children. My kids were seven and ten years old at the time. I was using one hundred pain pills a day and I had somehow managed to gather up seven hundred for the week. I was set. I could relax and enjoy my family, but there was a problem: I had seven hundred pills at once. I couldn’t limit myself to one hundred per day. I ran out on Thursday. I was horrified. I had over three days to go before I got back home to my supply. I was going to get deathly ill. I would do anything to avoid being sick. I drove to a nearby pharmacy dressed in a swimsuit and an old University of Tennessee football shirt. I knew I would get caught if I wrote myself a prescription, so I sat in my car with a loaded .357 Magnum and decided I was going to rob the pharmacy. Somehow, I had a brief moment of clarity. I knew I couldn’t recover from an armed robbery. I spent the next three days deathly ill, making everyone around me miserable.

My story doesn’t end in that pharmacy parking lot. Several weeks later, my family intervened. I was terrified. I couldn’t let people know of my addiction. It didn’t matter that I was going to die, I would lose

6

DICTA

December 2019

AT TO R N E Y P R O F I L E By: Jason H. Long London Amburn

KBA PRESIDENT-ELECT: HANSON TIPTON

Dedicated, collegial, honorable, smart, family-oriented. These are the adjectives most often used by those who know him best, when describing the 72nd President of the Knoxville Bar Association, Hanson Tipton. Born and raised in Knoxville, Hanson has roots that run deep in the East Tennessee legal community. The son of retired Court of Criminal Appeal Presiding Judge Joseph M. Tipton, Hanson comes from a family of lawyers and educators. It should come as no surprise that he has dedicated himself to the betterment of his community. Service has been a hallmark of Hanson’s legal career ever since Nathan Rowell encouraged him to get involved in the Tennessee Bar Association Young Lawyer’s Division many years ago. Hanson enjoyed that service so much that the YLD had to forcibly kick him out when he became too old to remain a young lawyer, but was still neck deep in running service projects. While Hanson would tell you that service to the state bar was fulfilling and worthwhile, in the same breath he will say that it is the Knoxville Bar, and this local community of lawyers, that truly energizes his volunteer spirit.

Growing up in East Tennessee, Hanson developed a healthy affinity for all things Volunteer. To this day, he can be found most weekends, and many weeknights, cheering on the Big Orange at football and basketball games. His passion for sports is not limited to Tennessee, as his wife, Elizabeth, will tell you. He cheers passionately for Florida State, his alma mater, except when they play the Vols. Nor is his passion for sport tied to the need to root for a specific team. He has been known to attend many sporting events where he has no rooting interest, just to watch the game. Hanson, his wife, and their sixteen-year-old daughter, Maggie, enjoy travelling and Hanson almost never misses an opportunity to find some sporting event to attend in the cities they visit. Plans are already underway for a tour of colleges for Maggie and Hanson is December 2019

diligently working on scheduling visits to coincide with as many sporting events as possible.

Diligent is another appropriate adjective to use when describing Hanson. This is a man who taught himself how to play the guitar. His father, who himself cast a very long shadow in the bar, will tell you, quite honestly and with great pride, that his son is a better trial lawyer than he ever was. He credits Hanson’s preparation and analytical skills for the success he has enjoyed. He also notes Hanson’s quick wit as a reason for his success. This is a skill Hanson demonstrated at a very early age, as evidenced by the time his father took him to a preseason NFL game played at Neyland Stadium. Teenage Hanson spent the night before at a friend’s house and, while at the football game, Joe noticed his son falling asleep. When asked why, Hanson said it was because he and his friend stayed up all night. Joe, believing his son was wasting a golden opportunity to see a special sporting event (this was before the Titans moved to Tennessee), looked at his son and said, as only a father can, “you’re an idiot.” Without missing a beat, Hanson replied “I guess that makes me a chip off the old idiot.”

Hanson began his legal career clerking for Judge John K. Byers and later joined the firm now known as Watson, Roach, Batson & Lauderback, P.L.C., where he has remained ever since. He credits a number of mentors through the years, including his own father, Judge Byers, and Robert Watson. They taught him the importance of excellence in the practice, civility in the profession, and service to the community. Moreover, Hanson has taken lessons and inspiration from the unique local bar that is the KBA. He believes there is a collegiality and camaraderie present in our local bar which makes it a special and fulfilling place to work.

It is that unique quality that motivated Hanson to serve, when asked, as the President of the Knoxville Bar. As he told this author, he considers this opportunity a “blessing.” As his wife and his father both pointed out, Hanson is a naturally humble person. He would never seek out a position like this and generally does not try to credit himself or his accomplishments. Anyone who knows Hanson knows that to be true.

He is a servant leader in every sense of the word. With a full bar year, including a Habitat for Humanity build and the 100th anniversary of the passage of the 19th Amendment upon us, we are blessed to have a leader like Hanson – diligent, dedicated, congenial, quick-witted, smart and humble - at the helm in 2020.

DICTA

7

8

DICTA

December 2019

PRACTICE TIPS By: Janet Strevel Hayes

Lewis, Thomason, King, Krieg & Waldrop, P.C.

PAGANS, PRAYERS, AND PREACHIN’: NAVIGATING RELIGION IN THE WORKPLACE

Ready or not, the holidays are upon us. With the holidays come workplace displays including manger scenes and menoroth. Some see these religious objects as innocent symbols of holiday celebration.

However, most in our profession, wiser to hidden evils in the world, immediately question the legal ramifications of mixing religion and work. I mean, isn’t the separation of church and cubicle mentioned in the Constitution? Or was that one of the Ten Commandments? It all gets so confusing.

The reality is that religion in the workplace is not a topic reserved for holidays. The EEOC reports that monetary benefits paid on religious discrimination claims (not including benefits obtained through litigation) rose from $2.2 million in 1997 to $9.2 million last year. Employers need legal guidance to address daily workplace issues that touch on religious beliefs.

The Basics

Employers with 15 or more employees are subject to Title VII of the Civil Rights Act of 1964 and those with eight or more employees are subject to the Tennessee Human Rights Act. Both statutes make it unlawful for an employer to discriminate based on an employee’s religion.

What is a “Religion?”

Enforcement becomes difficult because there is not a clear definition of “religion.”

The law protects more than just people who belong to traditional, organized religions like Christianity and Buddhism. It protects anyone who has a “sincerely held religious, ethical or moral belief[].” The U.S. Supreme Court has interpreted the term “religion” broadly, saying a belief is religious if it is “religious in the person’s own scheme of things.”

(Sounds like the Court was following the reasoning of Justice Potter Stewart’s infamous, “I know it when I see it,” definition of pornography.)

While social, political, and economic philosophies are not “religious” beliefs, the law does protect practices like adhering to certain dietary rules, proselytizing, displaying religious objects, and sometimes even wearing certain tattoos or body piercings. Whether the act is protected depends on the employee’s motivation and whether the belief is sincerely held. This is one area of the law where uniformity is thrown out the window, and employers are encouraged to consider situations on a caseby-case basis.

Reasonable Accommodation

The anti-discrimination statutes are more than just prohibitions on discrimination. They also include the affirmative obligation to provide reasonable accommodation for employees’ beliefs, unless it would cause the employer an undue hardship. Accommodation issues often revolve around scheduling and dress codes. For example, if an employee requests off Friday night and Saturday shifts to observe the Jewish Sabbath, the employer must attempt to accommodate the request, unless it would December 2019

pose an undue hardship to the business. Similarly, if an employee wears long hair pursuant to his Native American religious beliefs and applies for a restaurant job which requires male employees to wear hair “short and neat,” the restaurant should consider an accommodation of allowing his hair to be worn in a ponytail or held up with a clip. While there is nothing wrong with employer grooming policies that prohibit certain hairstyles, piercings, or tattoos, employers must be ready to carve exceptions when the employee’s religious beliefs require certain garb.

Protecting the employers’ brand or recognizing customer preference is not a valid employer excuse for failure to accommodate.

Harassment

Much like sexual harassment, Title VII prohibits harassment of an employee because of his or her religion. Tense situations arise when one employee exercises his right to freely express his religion, and another employee finds the expression offensive to the point of creating a hostile environment.

The EEOC says expression can be an undue hardship if it genuinely disrupts the work of other employees or significantly impacts customer relations. For example, one court found that it was not an undue hardship for a private sector employer to allow a cashier to say “Have a Blessed Day” when accepting payment. Again, however, the analysis hinges on a case-bycase review. Similarly, a private employer is likely to be required to allow an employee to put up a “Jesus Saves!” poster in the employee’s private office, visible only to coworkers, but may not be required to allow another employee to display the same poster if the employee worked at a desk in the front lobby, visible to all who enter the business.

Prayer Groups and Bible Studies

What if the employer or supervisor wants to hold religious gatherings at work or require prayer as part of meetings and activities?

Whether those religious observances create a hostile environment for employees may hinge on the extent to which employees are required to attend. Hosting a voluntary Bible study for employees is not necessarily a violation of Title VII; however, requiring employee attendance at such a gathering would cross the line. Similarly, if workers want to have their own religious gatherings on employer premises, that is permissible, as long as employees who choose not to attend are not penalized or harassed. If the employer wants to forbid such gatherings, the employer should adopt a policy prohibiting all meetings that are not work related. If, however, the employer allows any group to meet for a non-business purpose, the employer should also allow the religious groups to meet. To forbid only religion-related meetings would open the door to a religious discrimination claim.

DICTA

9

HELLO, MY NAME IS...

By: Jennifer Franklyn

Leitner Williams Dooley Napolitan, PLL

KATIE O’NEAL

This month’s “Hello My Name Is” column features Katie O’Neal, an Associate Attorney at Baker, O’Kane, Atkins & Thompson. Katie’s practice focuses on medical malpractice defense. She is both an undergraduate and law school graduate from the University of Tennessee and is the co-chair of the Knoxville Barristers Law School Mentor Committee.

This month, I asked Katie to share some facts about her that you may not know just from meeting her in the courtroom.

Describe your hero.

Aside from my parents, I would say both of my grandmothers come to mind. My paternal grandmother is whip-smart and my maternal grandmother radiated warmth and kindness. I was named after both of them and I hope I was lucky enough to have a little bit of each of them passed down to me.

year (where I met my husband) and then traveled around Europe for a month before spending the first semester of my 2L year studying law in Groningen, Netherlands.

What have you learned from your travel?

Probably the most unexpected and important lesson I learned from my travels during law school was to appreciate where I am lucky enough to live. I came back loving Knoxville and ready to take advantage of everything East Tennessee has to offer.

What is your favorite book?

Easy – Harry Potter. I majored in English Literature and have read numerous “important works of literature,” but nobody does it quite like J.K. Rowling.

Tell me about what you’re reading and watching right now.

Currently reading: I’ve been on a big Stephen King kick recently.

My favorite Stephen King book so far is IT. My plan is to work my way through all of his books.

Currently watching: I love period pieces. The new season of Peaky Blinders came out recently so that is my current favorite. I am also looking forward to the new season of The Crown.

What are your hobbies?

I started running regularly about the same time I started my job and since then, I’ve completed a few marathons, half marathons, and some shorter distance races. I got hooked on running when I figured out that I could listen to audiobooks at the same time. I also adopted a dog, Sirius Black, who needs daily exercise (he loves running more than anyone I know). If I ever feel like I don’t want to run, I get guilt-tripped by his puppy dog eyes, and it gets me out the door.

Do you have any other pets?

I have a ragtag group of pets that I adore. I have two cats: Chaz (a huge, grumpy Maine Coon) and Abigail (a food-obsessed cat who also has black and white coloring, similar to a cow in appearance). I also have two dogs: Eleanor Rigby (a food-loving Beagle mix) and Sirius Black (who is my only pet I could actually dub a “good boy”).

Have you traveled internationally?

I spent a summer abroad studying Spanish in Costa Rica when I was in high school, and that left me with permanent wanderlust. I studied at Downing College in Cambridge the summer after my 1L

10

DICTA

December 2019

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Janet Strevel Hayes

Lewis, Thomason, King, Krieg & Waldrop, P.C.

THE NEW DOL OVERTIME REGULATIONS

Who gets overtime? For the last five years, the painfully honest answer to that question was probably, “We aren’t exactly sure.” Conflict, confusion, and chaos have been hallmarks of recent attempts to modernize wage and hour laws. We have long known and recognized that employees are exempt from federal overtime requirements if they: 1) engage in specific “white collar” job duties; and 2) earn a minimum salary threshold. However, since 2016, the exact amount of the salary threshold has been difficult to pinpoint with certainty. But stability may be on the horizon. On September 24, 2019, the Department of Labor (DOL) announced a final rule that will likely bring clarity to overtime requirements.

As you will recall, the Obama administration attempted a sweeping reform in 2016. The controversial change would have increased the minimum salary threshold for the overtime pay exemption from $455/week ($23,600 annually) to $913/week ($47,476 annually). The drastic change was met with a backlash from businesses. Litigation followed, and a federal judge in Texas issued an injunction blocking the DOL from implementing the 2016 rule.

Shortly thereafter, the Trump administration promised that, rather than appealing the injunction, it would create a new version of the rule. Then we waited. And waited. And waited some more. Now, after considering more than 200,000 public comments, the DOL has finally announced a new final rule.

Under the new guidelines, the minimum salary requirement will increase to $684/week ($35,568 annually). Obviously, the new threshold is considerably less than the 2016 rule, but it will still have a considerable impact on employers. It was predicted that earlier changes would have impacted more than 4 million workers. The new rule will still make 1.3 million workers newly eligible for overtime pay.

The new rule only affects the salary threshold. It does not change the white-collar duties test for executive, administrative and professional employees. Moving forward, in order to secure an exemption and avoid overtime, employers will still have to ensure that the position at issue meets the duties test required for one of these exemptions. The change is that employers will now have to also make sure the potentially exempt worker earns the new minimum salary amount ($35,568). Any employee who falls below the minimum salary threshold (with very limited exceptions) will be nonexempt and remain eligible for overtime pay.

Now is the time for employers (including law firms) to review all salaried positions to make sure that workers are correctly classified. If an employee is paid a salary (and the job duties otherwise satisfy the exemption), but the employee earns less than the new minimum threshold, the employer can either 1) increase the employee salary to avoid having to calculate and pay overtime or 2) reclassify the employee as nonexempt or “hourly” and pay time and a half for hours worked in excess of 40 each week.

Add this review to management’s year end “to do” list. Barring another surprise, the new rule will take effect January 2020.

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.

Photo Ops

BARRISTERS DIVERSITY MIXER

Attorneys and law students gathered for the Barristers Diversity Mixer on Thursday, November 7th at Pretentious Beer Company.

December 2019

DICTA

11

JUDICIAL NEWS By: Richard A. Major

Knox County Criminal Court Administrator and Fourth Circuit Court Magistrate

FAIR AND IMPARTIAL COURTS

An independent judiciary is the essential life blood for a nation of free people. All our Constitutional guarantees depend on a judiciary free from political sway and public sentiment. Even President Andrew Jackson, who is not always remembered as a staunch supporter of the judiciary, understood what was at stake when he maintained that all our rights as citizens “are worth nothing, and a mere bubble, except guaranteed... by an independent and virtuous judiciary.”1 As stewards of our judicial system, attorneys seek to zealously guard this vital autonomy for the benefit of all citizens. Fundamentally, public confidence is the currency through which our judiciary maintains its independence.

However, public confidence is undermined as hyperbolic and often misinformed criticism becomes more and more common. Social media only serves to magnify the problem. The cumulative impact of such criticism is corrosive to confidence in the judicial process.

Dutifully, attorneys attempt to provide the public with the context and clarification needed to appreciate the complexity of judicial decisions. Yet, we often lack a platform to be heard. A detailed interview with the local newspaper is quickly dwarfed by a sensational post on social media. As a bar, we may not be able to combat every errant social media post regarding a particular case. However, we can take proactive steps to engage, educate, and empower our fellow citizens to better understand and appreciate our unique judicial system. The public is more likely to respect the process when they are assured of its impartiality and fundamental fairness.

of statutes, case law, rules of procedure and sentencing guidelines. The presentation concludes with a discussion of contemporary concerns which, if left unchecked, could threaten the fairness and impartiality of the courts. The audience is challenged to consider whether judges should be pressured by the demands of public opinion, media coverage and special interest money.

In conclusion, the audience is encouraged to seek out information from reliable sources, to vote in judicial elections and to support a fair and impartial judiciary. An opportunity is provided to explain the purpose of the KBA’s Judicial Candidate Evaluation. Hopefully, this presentation will enable lawyers and judges to engage others in the protection of judicial independence. Ultimately, public confidence in the fairness and impartiality of the courts is necessary for the preservation of our judicial system. The full presentation can be found online at: www.knoxbar.org/index.cfm?pg=FairImpartialCourtsPresentation

1

Andrew Jackson, commenting on the importance of an “independent and virtuous judiciary” in a letter to his nephew, Andrew Jackson Donelson, 5 July 1822, The Correspondence of Andrew Jackson, III (Washington, 1926-1935), 167.

With education as the objective, the KBA’s Judiciary Committee created the Fair and Impartial Courts presentation. The Judiciary Committee employed a framework by the Nebraska Bar Association and the National Association of Women Judges to develop a presentation fully adapted to the structure of Tennessee’s court system. The Committee recognizes attorneys and judges are often invited to speak before various community groups. Therefore, our PowerPoint slides are designed to facilitate an effortless program lasting approximately half an hour. The flexibility of the presentation, however, easily accommodates a briefer speaking time frame. A loose script, multiple discussion questions, and numerous links to background information are provided, along with the PowerPoint slides. It is our hope that having an off-the-shelf presentation available will make it easier to accept speaking engagements.

We believe attorneys and judges alike will find the presentation well organized, easily adaptable, and simple to use.

The presentation begins by directing the audience to picture themselves in a courtroom. The attendees are asked to evaluate the fundamental qualities they desire in a judge. The presenter then guides the discussion through a broad exploration of judicial character. A basic civics lesson introduces the distinct roles of our three branches of government, focusing on the purpose of the constitution. Time is spent considering the perils of consolidated power and the need for checks and balances. The unique role of the judicial branch is highlighted, allowing the audience to see a clear distinction between judges and other elected officials. The presentation includes an explanation of how judges are selected for Tennessee trial and appellate courts, as well as selection for the federal system. The various types of Tennessee courts are discussed, along with the legal, ethical, and process structures of judicial accountability. The audience is introduced to the judicial constraints

12

DICTA

December 2019

SCHOOLED IN ETHICS By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

THE ETHICS OF SOLICITING ONLINE CLIENT REVIEWS

By this point, every lawyer has probably heard or read something about the ethical issues associated with online advertising and online solicitation of clients. For example, there are ethics opinions and decisions about the application of the advertising and solicitation rules to law firm websites and blogs.1 There are also ethics opinions and decisions about the application of those same rules to a lawyer’s social media accounts.2 And there are also ethics opinions and decisions about offering rewards for clients who post reviews on client review sites3 and responding to negative online client reviews.4 But as lawyers and marketing companies find new ways to reach out to new clients, new ethics issues continue to present themselves. Consider the following hypothetical: Lawyer wishes to employ the services of a company that automates the collection of online lawyer reviews as part of the client feedback process. The lawyer provides the company with the names and emails of clients for whom the lawyer has provided legal services. The company automatically sends these clients a request to review the legal services provided.

Then, not only does the company provide the feedback to the lawyer, it automates the redirection of high-scoring reviews – i.e., four or five-star reviews - to a lawyer’s Google, Facebook, Yelp, Yellow Pages or Avvo site. The company privately emails low-scoring reviews to the lawyer, so that they do not appear online (unless the client posts a separate online review somewhere else). May a lawyer ethically employ the services of this company?

A North Carolina ethics opinion considered this question and concluded that, subject to some qualifications, a lawyer is permitted to employ the services of a company like this.5 The first qualification concerns a lawyer’s obligation of confidentiality. A client’s name and contact information is information relating to the representation of the client and is protected by Rule 1.6 of the Rules of Professional Conduct. As such, the lawyer (or the lawyer’s agent) may not disclose such information absent the client’s informed consent. Accordingly, the opinion concludes that a lawyer must disclose to the client the fact that the lawyer pays a monthly fee for the company’s services and the nature of the services provided, including the fact that only positive reviews will be made public.

The second issue raised is whether it is deceptive in violation of Rule 8.3(c) for the company to post only the positive reviews online. In a rather perfunctory manner, the ethics opinion concludes that such conduct is not deceptive, provided the lawyer fully explains to the client that only four and five-star reviews will be made public. The opinion does not delve into some other potential issues raised by this practice. For example, including client testimonials in advertisements may potentially amount to false or misleading advertising in violation of Rule 7.1 if the testimonials would lead “a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”6 The fact that that the lawyer has effectively solicited client reviews for the purpose of advertising the lawyer’s services would arguably bring the reviews within the scope of Rule 7.1, thereby creating a potential legal issue as to whether the reviews/testimonials are misleading. And while no one would expect a lawyer to include a testimonial from an unhappy client in an advertisement, it sure feels a little deceptive for a lawyer to solicit client reviews, cherry pick the positive ones, and then effectively hide the negative ones, particularly if the number of negative reviews outweighs the positive.

Finally, the opinion deals with the question of whether a lawyer may reach out to a former client who provided a less-than-glowing review as part of the process and encourage that client to change the review to a four or five-star review so that it can be posted. The opinion concludes that a lawyer may ethically do so, provided the lawyer does not offer anything of value for doing so in violation of Rule 7.2(c), harass the client into doing so, or encourage the former client to lie about the representation.

To date, this North Carolina opinion is the only published formal opinion on the subject, so caution is probably required. But as lawyers devise new ways to stand out from the crowd, we can probably expect ethics opinions on similar topics in the coming years.

See Hunter v. Virginia State Bar ex rel. Third District Comm., 744 S.E.2d 611 (Va.

2013); State Bar of California Standing Committee on Professional Responsibility

and Conduct, Formal Op. No. 12-0006, http://www.calbar.ca.gov/Portals/0/ documents/publicComment/2014/2014_12-0006Blogging.pdf 2

See State Bar of California Standing Committee on Professional Responsibility and

Conduct, Formal Op. No. 2012-186, https://www.calbar.ca.gov/Portals/0/ documents/ethics/Opinions/CAL%202012-186%20%2812-21-12%29.pdf 3

See New York State Bar Association Op. 1052 (2015) (concluding lawyer may give

clients a $50 credit on their legal bills if they rate the lawyer on an Internet website

such as Avvo).

4

See, e.g., Colorado Ethics Op. No. 136 (2019).

5

North Carolina Bar Formal Ethics Op. 2018-7, https://www.ncbar.gov/for-lawyers/

ethics/adopted-opinions/2018-formal-ethics-opinion-7/ If you care, the company

is called Repsight. https://www.repsight.com 6

TRPC R. 7.1 cmt. [3].

1

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

December 2019

DICTA

13

L E G A L U P DAT E By: David A. Codevilla

Office of the General Counsel, Tennessee Valley Authority

TENNESSEE’S FIREARM CARRY PERMIT LAWS: NEITHER UNUSUAL NOR COMMON

As I’ve learned after almost ten years of living in Knoxville, Tennessee is an unusual state. It has three very distinct regions, each of which might be happier as an independent state. Topography ranges from sub-alpine to sub-tropical. Political and social diversity ranges from big-city Memphis to the fiercely libertarian foothills of the Great Smoky Mountains.

However, with one major exception, Tennessee’s firearm laws – and specifically the laws governing who can carry what kind of firearm, concealed or not – are not unusual. Although unique, they are different in degree more than in kind from analogous laws in neighboring states.

Common Ground

The firearms laws of four nearby states (Alabama, Arkansas, Georgia, and Virginia1), and Ohio, are broadly consistent with Tennessee’s firearms laws.2 All have constitutional provisions affirmatively stating citizens’ right to keep and bear arms.3 None require permits to purchase or possess rifles, shotguns, or handguns (consistent exceptions exist for felons, mentally ill, and minors). These states also specifically preempt local jurisdictions’ regulation of firearms or ammunition.4 All have a “shall issue” statutory regime for handgun or concealed weapons carry permits, meaning that, generally, state statutes limit or remove discretion from state officials to deny a permit if the applicant satisfies certain statutory criteria.5 Despite the general consistency of these statutory regimes, no two states’ laws are exactly alike.6

For example, Kentucky, Mississippi, and Missouri have even less restrictive firearms and handgun carry permit laws than Tennessee. Like twelve other states, none of these states require a permit to carry a handgun (concealed or otherwise); Kentucky’s most recent law (effective June 2019) eliminated the permit requirement for concealed carry, safety training requirements, and certain fees.7 Though handgun concealed carry permits remain available on a “shall issue” basis in all three states, presumably, such permits are useful for their holders only when traveling to states with reciprocity.

By contrast, North Carolina and Michigan establish higher thresholds for handgun or concealed carry permit applicants. In North Carolina, no state permit is required to purchase a rifle or shotgun, but state law requires a “Pistol Purchase Permit” or a concealed handgun permit in connection with any purchase, sale, transfer, or gift of a handgun.8 Further, though North Carolina is a “shall issue” state with respect to such permits, a Pistol Purchase Permit is valid for only one handgun purchase. In addition to establishing a licensing requirement for purchases, sales, or transfers, Michigan requires registration of handguns, which local authorities must keep for six years. A concealed carry permit holder in Michigan (also a “shall issue” state, but with extensive statutory prerequisites) is exempted from the handgun licensing requirements.9 Among the states of the federal Sixth Circuit (Tennessee, Kentucky, Ohio, and Michigan), Michigan’s more restrictive firearms laws are more anomalous than Tennessee’s.10 Trend Setting?

If in fact “[c]oncealed weapons permit laws across America are experiencing a trend toward less restriction,”11 recent Tennessee legislation suggests that state legislators are firmly in the middle of that trend.

In 2019, the Tennessee legislature passed HB 1264, which Governor Bill Lee signed into law on May 24, 2019, and will take effect on January 1, 2020.12 The statute creates a two-tier handgun carry permit system: the previously available (and renamed) “enhanced handgun carry permit” and a new “concealed handgun carry permit.” Interestingly, the latter has no application fee, authorizes only concealed carry (after an applicant completes one of several training courses, including an as yet nonexistent online course, or a hunter’s safety course), and restricts the places in which the new permittee could carry a concealed handgun.13 The “what’s old

14

is now enhanced” permit retains prerequisites, such as fingerprinting, background checks, a $100 application fee, and completion of an approved, live-fire handgun safety course. Once issued, the “enhanced” permit would be valid for eight years (versus five years for the lower-tier permit), and its privileges include exemptions from restrictions on carrying a handgun in parks, forests, waterways, and properties owned by educational institutions.

Putting these changes in context, Tennessee legislators were willing to take small steps towards what often is deemed “Constitutional Carry” (see, e.g., Kentucky’s 2019 legislation) by loosening the restrictions for “lower-tier” permits, increasing the privileges for “enhanced” permits, but declining to move to a (largely) permit-less concealed carry statutory scheme.14 As a result, Tennessee’s handgun carry laws in 2020 look more like unique hybrids of various (albeit more permissive than restrictive) approaches, rather than trend-setting or trend-following.

The Permit of a Lifetime

The Tennessee Department of Safety and Homeland Security (DSHS) “shall issue” a lifetime handgun carry permit to “[a]ny resident of Tennessee who is a United States citizen or lawful permanent resident, [and] who has reached twenty-one (21) years of age, [i]f the applicant is not prohibited from purchasing or possessing a firearm in this state [or under] any other state or federal law, and the applicant otherwise meets all of the requirements of [Tenn. Code Ann. § 39-17-1351].” These statutory requirements apply to both handgun carry permit holders and lifetime handgun carry permit holders; however, a lifetime handgun carry permit remains valid for the life of the permit holder, unless the permit holder no longer meets the basic statutory requirements for a handgun carry permit.

DSHS must conduct a criminal history record check in the same manner as required for handgun carry permit renewals, which is every five years after issuance. This application process is essentially the same as the process for a (soon to be “enhanced”) handgun carry permit, and the permit fee for a lifetime handgun carry permit is $200.00.15

Indiana is the only other state that provides a “lifetime” option.

In Indiana, another “shall issue” state, but one that prohibits open carry without a permit, an applicant can obtain either a “qualified” (for “hunting and target practice”) or “unlimited” (“for the purposes of the protection of life and property”) handgun carry license, either of which the applicant can convert, upon payment of an additional fee, into a “lifetime” license.16 Indiana requires a permit for any handgun carry, open or concealed, in contrast to Tennessee’s unique but more permissive handgun laws.

Conclusion

Tennessee’s existing and forthcoming handgun carry permit schemes remain broadly similar to those of its neighboring states, even with a new “two-tier” permit system and the continued availability of lifetime permits. In the upcoming national election year, though advocates on both sides of firearms freedom issues will skirmish in the Tennessee legislature, Tennessee’s firearms laws likely will remain unique but not unusual.

1

2

3

DICTA

Given the results of Virginia’s state legislative elections on November 5, 2019 (Democrat party control of both the House and Senate, with a Democrat governor), it is likely that Virginia’s firearms and handgun carry laws will become more restrictive (more consistent with North Carolina’s, and perhaps even Michigan’s, statutory regimes).

Tennessee’s firearms laws are codified at Tenn. Code Ann. §§ 39-11-106, 39-17- 1301-39-17-1323, 39-17-1351, 39-17-1357, 39-17-1359, 62-35-118, 70-4-123.

See Tenn. Const. art. I, § 26 (“That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”).

(Continued on page 15)

December 2019

Photo Ops

FALL HIKE KBA members and their friends and families hiked Fort Dickerson Park on Saturday, November 9th as part of the Professionalism Committee’s Annual Fall Hike.

MEMBER APPRECIATION

At Schulz Brau on October 24th, KBA members gathered together for our Member Appreciation & Welcome New Lawyers Celebration. The event was a great opportunity to thank members for their support and to welcome all of the new lawyers who passed the July 2019 bar exam. Live acoustic music was provided by KBA member Roman Reese. The event was sponsored by First Horizon Bank.

TENNESSEE’S FIREARM CARRY PERMIT LAWS: NEITHER UNUSUAL NOR COMMON (Continued from page 14)

See, e.g., Tenn. Code Ann. § 39-17-1314.

See, e.g., Ga. Code Ann. § 16-11-129, which prohibits the issuance of a weapons

carry license to, among others, minors unless they are in the U.S. military, fugitives

and felons, persons convicted of “forcible misdemeanors” or weapons charges,

mentally ill persons or drug addicts, and persons convicted of drug-related offenses.

6

For example, in Arkansas, it is illegal to transport a firearm in a boat at night, unless

it is unloaded and in a case. Ark. Admin. Code § 002.00.1-05.06. In Virginia, though

the law (as in 30 other states) specifically allows open carry of handguns, it is

unlawful to carry any firearm without good and sufficient reason to a place of

worship while a religious meeting is being held. VA Code Ann. § 18.2-283.

7

See https://www.courier-journal.com/story/news/2019/06/25/kentucky-new- concealed-carry-law-what-it-means-for-gun-loving-state/1511455001/.

8

See N.C. Gen. Stat. 14-402.

9

See Mich. Comp. Laws Ann. §§ 28.421-422, 28.425, 28.429-430, 750.224,

750.226, 750.227, 750.236.

10 See J. Scott Kappas, Traveler’s Guide to the Firearm Laws of the Fifty States (23rd

Ed., January 2019) (on a scale of 1-100, with 100 indicating “Total freedom,”

designating Tennessee as in the low 90s, Kentucky in the high 80s, Ohio in the mid

80s, and Michigan in the mid 60s).

11 Joseph D. Spate, To Have and to Hold: Factors to Consider Before Divorcing South Carolina

from the Concealed Weapons Permit Requirement, 68 S.C. L. Rev. 597, 626 (2017).

12 See http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB1264.

13 As one blog site puts it, the new two-tier permit system “is a unique feature to

Tennessee. Most states require more training and permits to carry concealed.

As of 1 January, 2020, in Tennessee, the state will require more training to carry 4 5

December 2019

openly.” See https://www.ammoland.com/2019/05/tennessee-reforms-firearm-law in-2019/#axzz64RXuW8CV. 14 Local media noted that, at the end of the 2019 Tennessee legislative session,

“[efforts died on several big pushes to loosen gun restrictions, including letting

teachers carry guns and holding permit holders harmless if they mistakenly bring

guns into businesses that ban them, then immediately leave when they find out

they aren’t allowed.” See https://newschannel9.com/news/local/tennessee-

lawmakers-pass-gun-permit-bill-wrap-up-session-05-03-2019. See also Giffords

Law Center to Prevent Gun Violence, “2019 State Gun Law Victories,” which

celebrates the fact that Tennessee and several other states failed to pass a “guns

in K-12 schools” bill in 2019 (https://giffords.org/press-release/2018/12/state-and- local-lege-memo/).

15 TN Dept of Safety and Homeland Security (Friday, January 20, 2017) www.TN.Gov/

safety; Renewal Fee Drops from $500 to $200. In 2016, the 109th General

Assembly lowered the renewal fee on lifetime handgun carry permits from $500

to $200. The fee for an original permit is now $100, and the permit is now issued

for eight years. If an eligible Tennessee resident seeks to upgrade to a lifetime

permit, he or she can apply at any full service driver services center and pay the

$200 upgrade fee at any time. The application fee for a lifetime carry permit

without existing possession of an original handgun carry permit is $300. Fees are

waived for former law enforcement officers who are Tennessee residents and had

at least 10 years of experience, including certain standard training. Tenn. Code Ann.

§ 39-17-1351(x)(2)[-](5).

16 I.C. §§ 35-47-2-4, 35-47-2-6.

DICTA

15

A LAWYER’S VIEW OF THE PRESIDENTIAL IMPEACHMENT PROCESS Introduction

Considering today’s hostile political climate, and the disinformation, histrionics, and hysteria swirling around various media outlets any time the term “presidential impeachment” is mentioned, perhaps it’s time to take a pedestrian look at this process through the dispassionate, apolitical lens of a lawyer. To begin, impeachment is not, contrary to popular belief, the removal of corrupt presidents or other officials from office, but simply the adoption of charges by the United States House of Representatives, triggering a trial in the Senate.

Consequently, impeachment is to official misconduct what an indictment is to crime: a statement of charges leading to a trial. It is likewise an extraordinary remedy that, historically, has been judiciously pursued.1 What follows is a look at what impeachment is and why it doesn’t necessarily mean removal from office.

What Is Impeachment?

The procedure for congressional impeachment of executive branch officials (including, but not limited to, the president) is spelled out in some detail in the U.S. Constitution, as the official House of Representatives history2 observes: Impeachment comes from British constitutional history. The process evolved from the 14th century as a way for parliament to hold the king’s ministers accountable for their public actions.

Impeachment, as Alexander Hamilton of New York explained in Federalist 65, varies from civil or criminal courts in that it strictly involves the “misconduct of public men, or in other words from the abuse or violation of some public trust.”

The Constitution sets forth the general principles that control the procedural aspects of impeachment, vesting the power to impeach in the House of Representatives, while imbuing the Senate with the power to try impeachments. Both the Senate and the House have designed procedures to implement these general principles in dealing with a wide range of impeachment issues. The relevant constitutional provisions are as follows: Art. I, Sec. 2, Cl. 5: The House of Representatives ... shall have the sole Power of Impeachment; Art. I, Sec. 3, Cl. 6 & 7: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no Person shall be convicted without Concurrence of two-thirds of the Members present.

What Are the Grounds for Impeaching a President?

Article II, Section 4 of the Constitution reads: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

It is important to note that when the Constitution was adopted, the term “misdemeanors” had not assumed its later meaning as a type of criminal offense, such as those outlined in Chapter 39 of the Tennessee Code Annotated.3 According to the most common interpretation of this language, impeachment does not require the allegation of a crime, but simply some grave act or pattern of misconduct deemed by Congress as necessitating this drastic remedy.

16

Impeachment proceedings may be commenced in the House of Representatives by a Member declaring a charge of impeachment on his or her own initiative, by a Member presenting a memorandum4 listing charges under oath, or by a Member depositing a resolution in the hopper, which is then referred to the appropriate committee. The impeachment process may be triggered by non-Members, such as when the Judicial Conference of the United States suggests that the House may wish to consider impeachment of a federal judge; when an Independent Counsel advises the House of any substantial and credible information which he or she believes might constitute grounds for impeachment, by message from the President; by a charge from a State or territorial legislature or grand jury; or, finally, by petition.5

Resolutions Regarding Impeachment

Resolutions regarding impeachment may be of two types. The first type of resolution, seeking to impeach a particular individual who is within the category of impeachable officers under Art. II, Sec. 4 of the Constitution, is usually referred directly to the House Committee on the Judiciary. The second type is a resolution to authorize an investigation as to whether grounds exist for the House to exercise its impeachment power. This resolution is then referred to the House Committee on Rules. Generally, such a resolution is then referred to the House Judiciary Committee.6

While the House Committee on the Judiciary usually conducts impeachment investigations, such matters have occasionally been referred to another committee, such as the House Committee on Reconstruction (as was the case in the impeachment of President Andrew Johnson), or to a special or select committee. In addition, an impeachment investigation may be referred by the House Judiciary Committee to one of its subcommittees or to a specially created subcommittee.7 The House may, prior to an impeachment resolution, present a Rules Package to members, designed to outline the procedures and process to be followed in the House.

Investigation

In all prior impeachment proceedings, the House examined the charges prior to entertaining any vote. Usually, an initial investigation is conducted by the Judiciary Committee, to which investigating and reporting duties are delegated by resolution after charges have been presented. However, it is possible that this investigation would be carried out by a select or special committee. The focus of the impeachment inquiry is to determine whether the public official has engaged in treason, bribery, or other high crimes and misdemeanors. If the House Committee on the Judiciary, by majority vote, determines that grounds for impeachment exist, a resolution to impeach the individual in question, which sets forth specific allegations of misconduct in one or more articles of impeachment, will be reported to the full House.8

House Action Subsequent to Receipt of Committee Report

At the conclusion of debate, the House may consider the impeachment resolution as a whole, or may vote on each article of impeachment separately. It is important to note that the committee’s recommendations as reported in the resolution are in no way binding on the House. The House may vote to impeach even if the House Judiciary Committee does not recommend impeachment. A vote to impeach by the House requires a simple majority of those present and voting, upon satisfaction of quorum requirements. If the House votes to impeach,

DICTA

December 2019

COVER STORY By: Joe Jarret

Attorney At Law, University of Tennessee

Summary

The purpose of this piece was to provide a brief overview of the impeachment process, reflecting the roles of both the House and the Senate during the course of an impeachment inquiry and trial. Due to space restrictions, some of the procedures regarding the issuance of subpoenas, records maintenance, etc., have been purposely omitted.

Outside of the 15 federal judges impeached by the House, two Presidents (Andrew Johnson in 1868 and William Jefferson (Bill) Clinton in 1998), a cabinet secretary (William Belknap in 1876), and a U.S. Senator (William Blount of North Carolina in 1797) have also been impeached. https://www.archives.gov 2

Office of the Historian-History, Art, and Archives, United States House of

Representatives: Impeachment. https://www.history.house.gov.

3

T.C.A. § 39-11-110 distinguishes between felonies and misdemeanors and reads:

“All violations of law that may be punished by one (1) year or more of confinement

or by the infliction of the death penalty are denominated felonies, and all violations

of law punishable by fine or confinement for less than one (1) year, or both, are

denominated misdemeanors.”

4

In House parlance, the term “memorandum” is used interchangeably with the term “memorial.”

5

Halstead ,T.J. Legislative Attorney, U.S. Congress, An Overview of the

Impeachment Process (2015).

6

House Practice § 6; 3 Deschler’s Precedents of the House of Representatives, H.

Doc. 94-661, ch. 14, §§ 5.10-5.11, 15.

7

Id. 8

“Rules of Procedure and Practice in the Senate when Sitting on Impeachment

Trials,” printed in Senate Manual, S. Doc. 104-1, 104th Cong., 1st Sess., §§ 100-

126, at 177-85 (1995).

9

See, CRS Report 15-186. Impeachment: An Overview of Constitutional Provisions,

Procedure, and Practice, by Elizabeth B. Bazan. Updated February 27, 2017.

1

managers are then selected to present the matter to the Senate.

Notification by the House and Senate Response

The House, having voted to impeach, adopts a resolution in order to notify the Senate of its action. The Senate, after receiving such notification, will then adopt an order informing the House that it is ready to receive the impeachment managers. Subsequently, the appointed managers will appear before the Senate to impeach the individual involved and exhibit the articles against him or her. After this procedure, the managers would return and make a verbal report to the House.

The Senate: “Sole power to try all impeachments”

Impeachment proceedings in the Senate are governed by the Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials. After presentation of the articles and organization of the Senate to consider the impeachment, the Senate will issue a writ of summons to the respondent, informing him or her of the date on which appearance and answer should be made. On the date established by the Senate, the respondent may appear in person or by counsel. The respondent may also choose not to appear. In the latter event, the proceedings progress as though a “not guilty” plea were entered. When pleadings have concluded, the Senate will set a date for trial. Upon establishing this date, the Senate will order the House managers or their counsel to supply the Sergeant at Arms of the Senate with information regarding witnesses who are to be subpoenaed, and will further indicate that additional witnesses may be subpoenaed by application to the Presiding Officer. Under Article I, Section 3, Clause 6 of the Constitution, the Chief Justice presides over the Senate impeachment trial if the President is being impeached.

In impeachment trials, the full Senate may receive evidence and take testimony, or may order the Presiding Officer to appoint a committee of senators to serve this purpose.

When the presentation of evidence and argument by the managers and counsel for the respondent has concluded, the Senate as a whole meets in closed session to deliberate. Voting on whether to convict on the articles of impeachment commences upon return to open session, with yeas and nays being tallied as to each article separately. A conviction on an article of impeachment requires a two-thirds vote of those senators present. If the respondent is convicted on one or more of the articles against him or her, the Presiding Officer will pronounce the judgment of conviction and removal from office. No formal vote is required for removal, as it is a necessary effect of the conviction. The Senate need not vote on all of the articles before it.9 December 2019

DICTA

17

THE GRAMMAR GRINCH By: Sarah M. Booher OEB Law, PLLC

CHRISTMAS IN QUOTATION MARKS

An anonymous gentle reader has kindly requested that I spend an article discussing the intricate details of quotation marks. The Grammar Grinch deems this request a most worthy endeavor and hopes it satisfies Gentle Reader’s most urgent needs. Without further ado, here are some helpful hints to help you successfully navigate quoting others in your writing.

•

Use quotation marks for direct quotes only; indirect quotes do not get special treatment.

Santa said, “Rudolph, with your nose so bright, won’t you join my sleigh tonight?”

Annie said, “I’ve been saving this money for a divorce, if ever I get a husband.”

Gentle Readers, you receive bonus points for knowing that Christmas movie.

•

Commas and periods always go inside the quotation marks; colons, dashes, and semicolons are almost always outside the quotation marks.

It is unclear if the Grinch was aware that his heart was “two size too small”; he just knew he wanted to stop Christmas from coming.

The other reindeer were caddy jerks who said Rudolph couldn’t join in any of their games.

•

quotation marks. However, if you are ending the sentence your punctuation is generally included within the quotation marks.

•

Block quotes also do not use quotation marks. Instead, they are usually set apart through another paragraph, different line spacing, wider margins, and other formatting changes. If you are using a block quote for legal writing purposes, our Blue Book mandates block quotes when quoting fifty or more words.

Additionally, these block quotes should be single-spaced, indented on both sides, and justified. The citation following the block quote should not be indented but should begin at the left margin on the line following the quotation.

Hey! If any of you are looking for any last minute gift ideas for me, I have one. I’d like Frank Shirley, my boss, right here tonight. I want him brought from his happy holiday slumber over there on Melody Lane with all the other right people and I want him brought right here, with a big ribbon on his head, and I want to look him straight in the eye, and I want to tell him what a cheap, lying, no-good, rotten, four-flushing, low-life, snake licking, dirt-eating, inbred, overstuffed, ignorant, blood-sucking, dog-kissing, brainless, hopeless, heartless, bug-eyed, stiff-legged, spotty-lipped, worm-headed sack of monkey ***** he is. Hallelujah! Holy ****. Where’s the Tylenol?

Question marks and exclamation points are different. If they belong to the quoted text, they go within the quotation marks. If they apply to the general text as a whole, they are placed on the outside of the quotation marks.

“Are you afraid of responsibility?” asked Lucy to Charlie Brown.

What movie do you think of when you hear “ Yippie-ki-yay”?

“There was more than one lobster at the birth of Jesus”!

•

It is preferable for ease of reading and reading comprehension to use single quotation marks for quotes within quotes.

•

When you want to distance yourself from a word, you might be inclined to put it in quotation marks. Frequently called scare quotes or shudder quotes, be sure to use these in moderation for maximum effect and to maintain a good report with your readers.

Do you consider movies like Die Hard and Gremlins to be “classic” Christmas movies, or are you more of a traditionalist?

Should you have any vexing grammar questions you would like addressed in future installments, please do not hesitate to let me know at sbooher@lawoeb.com. I am happy to help. Until then, Merry Christmas, KBA family!

National Lampoon’s Christmas Vacation (Warner Bros. 1989).

•

All quotation marks opened must be closed. Readers must be able to distinguish your words from the words of others that you are incorporating into your writing.

•

If your quotation is a complete sentence, begin the quotation with a capital letter, even if it is in the middle of your own sentence.

Likewise, a quotation of a simple phrase or incomplete sentence means you do not capitalize the quotation.

Will Ferrell talked about his 2003 smash hit, Elf, saying, “It was just obviously one of those movies where the stars aligned, and 15 years later, it’s crazy.” He admitted “there were moments” during the filming that he was worried his career was going to be ruined.

•

Additionally, do not capitalize the second half of a quote when you’re inserting a parenthetical.

“We live on the most boring street in the whole United States of America,” said Kevin McCallister’s older brother in Home Alone, “where nothing even remotely dangerous will ever happen. Period.” (Famous last words, kid.)

•

18

Punctuation marks that introduce a quote are not placed in

DICTA

December 2019

VITE ET CREDE By: Melissa B. Carrasco

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

CONSENT REQUIRED

There was a lot of history between Mattie and Thomas Pattison of Knoxville, Tennessee. The problem is that much of that history has been lost to history. We may not know all of the specifics, but we do know a few things. We know Mattie E. Larew married Thomas W. Pattison on November 1, 1888.1 We know that, two years later, they had their first child, and over the next eighteen years, they had a total of six children together.2

We know that, after Thomas and Mattie were married six years, Mattie’s brother, Charles L. Larew,3 deeded to her four houses and their accompanying lots along Emerald Avenue. For the next twenty-seven years, a variety of tenants lived in and rented the property, and for the next twenty-seven years, Thomas dutifully collected the rent from the tenants each month and that money was used to support the family.

tenancy by the curtesy.8 In other words, husbands still had a common-law right to inherit their wives’ property if the wife died first.

Mattie thought the Act meant that she was the only one with the right to the rents, because she owned the property. The fact that she had let Thomas collect the rent for twenty-seven years and that the money supported the family did not matter to Mattie. It was her property.

Thomas thought that, since he had the common-law right to inherit the property from Mattie when she died (or at least as long as they stayed married), he had the right to the rents while she was alive.

The Chancellor sided with Thomas, but the Court of Appeals and the Supreme Court sided with Mattie.

The intention of the act [was] to deprive the husband of all of his common-law rights with respect to the wife’s property during coverture; that it was intended that she should hold such property during coverture just as if she were not married, and the only way that the husband can acquire her property during coverture is by purchase or gift, just as he might acquire the property of a stranger; that he is not entitled to appropriate her money, without her consent, nor to reduce her choses in action to his possession by virtue of his marital rights during coverture; that such rights are destroyed by this emancipation statute. Therefore, it follows that the husband has no right in or control over the rents accruing from his wife’s land, except with her consent.9

Then, in 1923, something happened. Again, we do not know the details of exactly what happened. We don’t know if it was one big thing or a culmination of years of a lot of little things. All we know is that on April 7, 1923, after thirty-five years of marriage, Mattie moved out.

In fact, Mattie didn’t just move out. She moved out with a vengeance. Soon after she moved out, she sent notice to the tenants and told them not to pay any more rent to Thomas but to pay the rent to her.

She sent a similar notice to Thomas. Unfortunately, neither Thomas nor the tenants listened. The tenants kept paying the rent to Thomas, and Thomas kept taking them.

So, Mattie did what any reasonable person would do in that situation. She hired a lawyer and filed a lawsuit. Mattie wanted an injunction to stop the tenants from may the rents to Thomas, and she wanted Thomas to pay her all of the rent he had previously collected.

Thomas didn’t see it that way. Thomas said he had a right to the rent because he was a “tenant by the curtesy” and under the doctrine of jure uxoris.

You remember jure uxoris, right? It was a title of nobility given to a man after he married a woman who had a title of nobility in her own right.4 It came to be a legal doctrine whereby a man inherited all of his wife’s property upon their marriage. This was really a problem when Queen Mary I of England (Mary Queen of Scots) married Phillip II of Spain because no one really wanted England to suddenly become part of Spain.5 So, Parliament passed Queen Mary’s Marriage Act (seriously, they passed a law to address the Queen’s marriage), and it said that Mary and Phillip would have equal authority.6 It was unprecedented, and it was 1554.

As empowering as Queen Mary’s Marriage Act, may have been for Queen Mary, 369 years years later, Mattie and Thomas found themselves posing the same question to a Knox County Chancellor: did a woman lose all property rights once she got married? Like Parliament, Tennessee had recently passed a law. But, unlike Parliament, which addressed one, very specific situation, the Tennessee General Assembly saw the bigger picture.

In 1913, it enacted the Married Women’s Emancipation Act, and unequivocally preserved for all women “the capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property – whether real or personal . . . as if she were not married.”7 The Act applied to property which a woman owned when she was married and property a woman acquired after she got married. The law seemed clear until 1919, when the Act was amended to clarify that it did not interfere with a husband’s December 2019

Thus, three years after Tennessee ratified the 19th Amendment, giving women the right to vote, the Tennessee Supreme Court, opened the door for women to fully enjoy that right – by confirming a woman’s right to autonomy over her own property. We do not know what happened to Mattie . . . or to Thomas for that matter. But, we do know one thing. Thanks to the far-sighted members of the Tennessee General Assembly, Justice Frank P. Hall and the other members of the Tennessee Supreme Court, and one very determined, female landlord, no one wonders any longer about whether securing the right to vote also means women should have equal rights in other things – like property. Seeing a right become a reality is believing.

U.S. Genweb Notices, Knoxville, Tennessee Marriages, available at http://files. usgwarchives.net/tn/knox/vitals/marriages/knxmrl-l.txt (last visited Nov. 10, 2019).

2

Pattison v. Baker, 255 S.W. 710 (Tenn. 1923).

3

If the name “Charles L. Larew” is familiar to you, he was a Knoxville author whose

short, historical sketches are part of the Larew Family Papers safely preserved

in the Tennessee State Archives. His wife, Ada Campbell Larew, was actually

the more famous half of the couple. Ms. Larew was an author and poet who

captured the stories of the native peoples, the pioneers, and the Civil War, all from

the viewpoint of the people living in East Tennessee during its earliest days. Ms.

Larew’s works regularly were published in Knoxville newspapers, and they too are

a priceless part of the Tennessee State Archives. Tennessee, Dept. of St., Tenn.

St. Library & Archives, Larew, Ada (Campbell), available at http://tsla.tnsosfiles.com. s3.amazonaws.com/history/manuscripts/findingaids/LAREW_ADA_CAMPBELL_ FAMILY_PAPERS_ca_1919-1961.pdf.

4

Kristen Mercier, Windsor Castle, College of St. George, Mary Tudor and the Great

Charter of Liberties, https://www.stgeorges-windsor.org/image_of_the_month/

mary-tudor-and-the-great-charter-of-liberties/ (last visited Nov. 10, 2019).

5

Id. 6

Id. 7

Shannon’s Code § 36-601 (1914); Parlow v. Turner, 178 S.W. 766 (Tenn. 1915).

8

Pattison, 255 S.W. at 712.

9

Id. 1

DICTA

19

BAR HOPPING By: Julia Hale

Lewis, Thomason, King, Krieg & Waldrop, P.C.

Congratulations to Doug Dutton and Harold Pinkley Jr. for correctly identifying the Chester County Courthouse in the final Bar Hopping article! It has been a pleasure, but it is time to try something new. Please keep an eye out for the new article coming January called “Passing By” about local restaurants that are worth the detour!

JA

N

FEB

R

AP

Y MA

JU

G

SEP

OC

T

NO

MA

AU

R

N

V

barrister bullets BARRISTERS ELECTIONS AND HOLIDAY PARTY Everyone is invited to attend to attend the Barristers Elections and Holiday Party at the Bistro at the Bijou (807 South Gay Street) on Wednesday, December 11, 2019, at 5:00 p.m. We will be electing Vice President, Secretary/Treasurer, and the two AtLarge Executive Committee Member positions. Members may pick up a ballot beginning promptly at 5:00 p.m. All ballots must be submitted by 5:15 p.m. After the successful candidates are announced, plan to stay for the Holiday Party! There are many opportunities to get involved with Barristers in the coming year, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information.

Law Office, the University of Tennessee College of Law, Lincoln Memorial University- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next clinic, which will be held on December 11 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on December 11 in the Event Calendar at www.knoxbar.org.

TOY DRIVE FOR SPARK Barristers will be collecting new battery-operated toys for children served through SPARK. SPARK is a regional non-profit agency that helps people with disabilities gain access to assistive technology and services that help them lead more independent and productive lives. Toys will be collected at the Barristers Elections and Holiday Party (December 11), at the KBA Annual Meeting and Elections (December 13), or at the KBA Office through December 20, 2019.

For a list of toys that are accepted through SPARK, please visit December 11 in the Event Calendar at www.knoxbar.org.

SUPPORT THE VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the fourth Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). We serve breakfast to about thirty to forty individuals and finish our work around 7:30 a.m. The Barristers Volunteer Breakfast Committee needs volunteers to prepare and serve food and sponsor each breakfast. We need four or five volunteers each time, and sponsorships are $150.00. You can volunteer, sponsor a breakfast, or both! Please join us in serving the needy in our community. If you would like more information about volunteering or sponsoring a breakfast, please contact the Volunteer Breakfast Committee Co-Chairs, Paul E. Wehmeier at pwehmeier@adhknox.com or or Matthew Knable at knablelaw@gmail.com, or sign up at http://www. knoxbar.org/KBA-News/help-volunteer-ministries.

STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox County Public Defender’s Community

20

DICTA

December 2019

OF LOCAL LORE & LAWYERS By: Joe Jarret

Attorney At Law, University of Tennessee

PAUL Y. ANDERSON: WITNESS TO THE LAW Son of Knoxville

In an era where allegations of fake news, muckraking, and shoddy reporting are cast upon many members of the media, it comes as no surprise that Knoxville’s most accomplished, yet least known newspaper reporter, is hardly a household name. Yet, Paul Y. Anderson, a man unschooled in the law, found himself in the midst of some of the most historically significant legal issues of the twentieth century. And, unlike some people upon whom greatness is thrust, Paul Y. Anderson thrust himself into issues not for the faint of heart.

daily risk of assassination.” In the summer of 1932, while working from the Washington, D.C., bureau of the St. Louis Post-Dispatch, Anderson reported on Army troops, armed with sabers and rifles with fixed bayonets, breaking up demonstrations of WWI veterans seeking payment of military bonuses.

The Pulitzer

The Early Years:

“For his highly effective work in bringing to light a situation which resulted in revealing the disposition of Liberty Bonds purchased and distributed by the Continental Trading Company in connection with naval oil leases.”

According to Knoxville historian Jack Neely,1 Paul Y. Anderson grew up tough, on Sevierville Pike, the son of stonecutter Holston Anderson.

Sadly, Holston was killed in a quarry accident when a faulty derrick fell on him, crushing him to death.

His mother, Elizabeth, was a South Knoxville schoolteacher, and tried her best to raise Paul and his two siblings alone. Anderson graduated from Central High School (the school for kids who lived outside of city limits), and his education stopped there because he knew he couldn’t help support the family by sitting in a college classroom. Rather, the young Paul delivered telegrams and newspapers, and performed other odd jobs.

An Untimely Death

A Reporter is Born

In 1911, Paul went to work for the old Knoxville Journal as a reporter. It is said that Paul learned enough on the job to impress big-city editors.

So much so, that at the tender age of 19, he landed a job with the St. Louis Times in 1912, and a year later, with the St. Louis Star. In 1914 Anderson married Beatrice Wright of East St. Louis, and later that year, was hired by the St. Louis Post-Dispatch. 2 In 1923, after two years as an editorial writer, Anderson was unable to persuade the Post-Dispatch to send him to Washington D.C., so he resigned and went to the capitol as a freelance reporter.

His first major bit of reporting was on the Teapot Dome Scandal 3 and later that same year, he went to Chicago to cover the trial of Nathan Leopold and Richard Loeb, both 19, who had abducted and murdered 14-year-old Bobby Franks. Paul was quickly rehired by the Post-Dispatch and, in 1925, much to his delight, he was sent back home to nearby Dayton, Tennessee, to cover the Scopes “Monkey Trial.”

On December 6, 1938, after having been unceremoniously dismissed from the job he so loved, and suffering from depression, Anderson, 45, told his housekeeper he was tired of living and took an overdose of sleeping pills, leaving behind a note that read “My usefulness is at an end.” At his funeral in Washington D.C. one of his pallbearers was an old friend, former Associate Justice of the United Supreme Court, Hugo Black. Several luminaries spoke at the somber affair, one of whom was Sen. George Norris, a progressive Republican from Nebraska. Norris’ word were taken down verbatim by a local reporter: “The loss of Paul Anderson will be felt generations to come, because he passed away when the world needs more than ever the fighters for the under privileged and the victims of the abuse of power by those who control our economic life.” He likewise said, “The pen he wielded for so many years in behalf of humanity, on behalf of justice, was more mighty than the sword of the most illustrious warrior who ever fought upon the field of battle.”

Paul Anderson is buried in Island Home Baptist Church Cemetery, Knoxville.

1 2

3

Witness to Violence

4

According to author Harper Barnes, 4 Anderson, while covering the 1917 East St. Louis, Illinois race riots, 5 witnessed the deaths of more than a dozen African Americans who had been lynched or shot. A special U.S. House committee that later investigated the riots said Anderson reported “what he saw without fear of consequences, despite running

5

December 2019

In 1929, Anderson won the Pulitzer prize for his investigation of what happened to $2.7 million in bonds that were part of a slush fund in the “Teapot Dome” scandal.

Anderson had exposed the “Watergate” of his time.

The citation to accompany his award read:

DICTA

See, https://knoxvillehistoryproject.org/tag/paul-y-anderson/ Lambeth, E. B. (1983). The Lost Career of Paul Y. Anderson. Journalism Quarterly, 60(3), 401-406.

The Teapot Dome scandal was a bribery scandal involving the administration of United States President Warren G. Harding from 1921 to 1923.

Barnes, H. (2011). Never been a time: The 1917 race riot that sparked the civil rights movement. Bloomsbury Publishing USA. The East St. Louis riots or East St. Louis massacres were a series of outbreaks of labor- and race-related violence that caused the deaths of an estimated 40–250 African Americans in late May and early July 1917.

21

L E G A L LY W E I R D By: Lisa J. Hall

Hodges Doughty & Carson

CELLINO & BARNES, THE OFF BROADWAY PLAY

Lawyers. One day you have it made – the perfect phone number, the perfect partner, and you and your partner are each making one million dollars per month. The next, you begin to believe you are unfairly compensated (one million dollars per month does not go as far as it used to – am I right? – and those bills are not going to pay themselves), you don’t see eye-to-eye about what cases to take, and you disagree about marketing. Plus, your partner will not even let you hire your daughter.

Before May of 2017, the New York personal injury law firm of Cellino and Barnes had survived obstacles and setbacks, including a finding of professional misconduct in 2005 for advancing loans to clients and the suspension of Cellino for six months. They had a well-known jingle reminding people who were injured in an accident to call (800) 888-8888 (“Don’t wait, call 8.”).

In 2017, however, Steve Cellino had had enough and sued his partner Ross Barnes for dissolution of the firm, due to disagreements over finances, personnel, advertising, and marketing strategy. He characterized the relationship as “toxic.” Barnes, in turn, accused Cellino of “reprehensible conduct,” including efforts to “pirate” lawyers and cases from the firm with the intention of starting his own firm. Still, Barnes believed they had a good (enough) thing going, considering the massive profits, and opposed the dissolution. At one point, Cellino is alleged to have said: “I don’t give a f—k, I will burn the place to the ground and start over with one lawyer.” The firm’s California locations dissolved later in 2017 and now operate as The Barnes Firm. Barnes has also sued the Cellino family for founding another law firm, Cellino and Cellino, which was created by Ross’s wife and children.

Comedy writer Michael Breen could not recall a day in his life when he did not see the faces of Cellino and Barnes on some kind of commercial or advertisement. They were part of the “landscape” of his life.” Breen and David Rafailedes saw comic and drama gold in this breakup and created the Off Broadway play “Cellino v. Barnes,” in which Cellino describes his attributes as, “I’m young, I’m dumb, I’m full of fun” and “I’m a terrible lawyer, but people like me.” Barnes’ role is described as “the creepy guy in the shed.” The play covers the coast-to-coast expansion of the firm, Cellino’s desire to have expensive Japanese toilets in their offices for staff, and an incident involving a fax machine and China’s onechild policy. The disclaimer on the program says, “Sue us, we dare you.”

The sold-out play premiered in Brooklyn in August of this year, and has since played in Los Angeles and Buffalo, New York.

The actual case is set for trial in January 2020, but rumors are that the partners are working to negotiate a settlement, the terms of which will have to include who gets the 888-8888 number, how to divide up the firm’s 10,000+ cases and more than 300 employees, including lawyers.

One source says the “all-8 number, in itself, is worth millions.”

While I do not envy the obvious turmoil endured by Cellino and Barnes over the last few years, I most certainly envy the fact that they were brilliant enough to inspire a playwright to create a production based

22

Cellino and Barnes, in happier days. on their rise and fall. Part of everyone’s firm planning should always include a list of actors/actresses who will play each person’s part in the event of unintended drama and resulting play or movie. Supposedly, Barnes does not intend to see the play, as he has “no interest,” saying it is “really not my thing.” Maybe he is not very excited about seeing himself portrayed as the creepy guy in the shed. Cellino, on the other hand, definitely plans to go. Hey, you could do worse than young, dumb, and full of fun. You could be all of those things without one million dollars per month continuing to roll in.

DICTA

December 2019

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor

Pryor, Priest & Harber robertpryorjr.blogspot.com

THE ELEVATOR

I often use this platform to implore you, my fellow barrister and faithful reader, to stop and smell the roses. I often pen pieces that are born of solemn contemplation in a fast-paced world we all share, but this one came on the wings of sudden inspiration that blindsided me in an airport-hotel elevator and took me prisoner for the better part of a month now. It was only a five-story ride.

I pushed the button labeled “L” after rolling two suitcases onto the elevator. I had a couple of trips to make in order to get all of the luggage from our hotel room to our car in the Hyatt parking lot. We were doing our best to get Cori to the Atlanta airport for a flight back to Guinea, Africa. I was alone in the elevator when the doors closed, still basking in the glow of a wonderful and rare week with all four of my children. The earliest feelings of melancholy were already trying to creep in as life was about to return to its new normal, but I was resolved to get through the goodbyes.The doors had just closed on the elevator before I recognized the song, “Hey Ya” by Outkast, bleeding from the speakers, and resolve melted away.

It had been a special week. Shelby had flown in from Washington, Cori from Africa, and then the boys from Knoxville later in the week so they would not miss too much school or work. All six of us congregated in the Florida panhandle for my nephew’s wedding.

It was a logistical miracle produced by my beautiful wife. It was the first time all of us had been together in almost 2 years. I rented a house in Seaside. I’d known they were all going to be excited to see me and their mom, but the predictable first question that came from each of them during the planning was, “Can Sophie come?” Sophie is our 12-year-old Golden Retriever. When she entered our life she was but a few weeks old and the kids were 8, 11, 12, and 14. She’s an old girl now, a step slower with a face that is a great deal whiter, and like me, she often mourns the empty nest and misses the chaotic life that once was ours. She made the trip and no one enjoyed the reunion more. She was rubbed and walked and loved.

She was used as pillow and talked to in voices from the past. She slept with the girls and ate conspicuously dropped crackers and salami while the boys watched football. For a moment, she and I were puppies again.

time for this. I needed to tend to business, to focus on loading the car, but Outkast was singing “shake it, shake it like a polaroid picture…” and I couldn’t help but envision Cori in the rearview mirror shaking her hand like she was holding a freshly ejected polaroid. The memories mounted a full-on assault while the floors dinged by. As the elevator approached the lobby, I was cast back to the driveway of our farm in Lenoir City when Sophie was but a puppy, trying to coral everyone for a Christmas card photo while children laughed and dogs barked and the world was right.

Then, just as fast as they all grew up, I arrived in the lobby. The doors opened and the music stopped. Sometimes there aren’t enough floors.

I finished packing the car and we put Cori on the plane. Life returned to the new normal with Nancy, Sophie and me, and it is a beautiful and happy life. I returned to my office where time seems to stand still and only the names on files seem to change. I schedule depositions and answer discovery, and listen to the voices that fill the halls. My law office hums with the sounds of the familiar. The red light on the phone blinks and the sound of an email arriving pings. The view from my window onto Knoxville below reveals a world that looks just as it did when the older photos were taken. You simply cannot let your surroundings fool you and don’t ever let the job keep you from the memories that find you in elevators, for like Mr. Morrison sings - it don’t matter to which God you pray, is slipping away.

But the week was over, and as I prepared to say goodbye to the last of them, Outkast was mocking me in an elevator. Hey Ya was our riding-to-school song when the kids were little. Cliff always rode shotgun. He is the oldest. The other three crammed into the back seat.

For what feels like just a minute, Andy, the baby, was in a car seat and then a booster. We would listen to a CD I burned called “The Ride.”

I know I still have the playlist on a hard drive stored in a closet. It was populated by songs like Superman by Five for Fighting, some Beyonce, AC/DC’s You Shook Me All Night Long (I know how to raise ‘em up), and my favorite Van Morrison song - Precious Time. They knew the words to all the songs and we sang - on the way to school, on the way to games, on the way to wherever we were going. While the elevator was squeaking past the third floor, I closed my eyes and was suddenly in the car on the way to school. Then we were in a pool at the Wilderness Lodge in Disney World, all four of them climbing on me, with cries of “Throw me Daddy,” and “how long can you hold your breath Robbie?” I didn’t have December 2019

DICTA

23

AROUND THE BAR By: Michael J. Stanuszek

Chairman and President, The Tennessee Law Lab, Inc. Founding Member, The Stanuszek Law Group, PLLC CEO, Volunteer Mediation Services

THE TENNESSEE LAW LAB, THE STATE’S FIRST LAW INCUBATOR, CELEBRATES ITS FIRST YEAR

The problem with how we educate our law students in this country has always been the same – there is a significant gap between the legal theory taught in our law schools and the nuts and bolts type of education law students need to actually practice law. And though you could argue all day long about whether law schools should continue to emphasize a liberal arts based educational model over a trade school model that emphasizes learned skills and practical knowledge (or some combination of both), one thing is absolutely clear—too many newly licensed attorneys don’t have the slightest clue how to actually practice law on Day 1.

Oh, they could probably rattle off all the elements of negligence, and maybe Daubert, and perhaps a hearsay exception or two. But, if you told them to draft a simple car accident complaint with a statute of limitations that runs tomorrow, they are lost. And frantic. And sweating bullets. And they don’t know where to even start.

Everyday, I see these new attorneys down at the courthouse.

They tell me they are there to take court appointments. But, instead of really going for it (i.e., introducing themselves to the judge, handing out business cards), they sit in the back row of the courtroom, with their heads down, secretly hoping no one asks them a question. That way, if they do not pick up any court appointments, at least they were there, and they can still feel good about themselves for “trying.”

And every time I see one of these new attorneys, I walk over and ask them why they are sitting in the back row of the courthouse like a church mouse when they should be sitting in the front row, trying to get the judge’s attention so they can take the next court appointment.

And the answer I get – 100% of the time – is, “I’m afraid to accept a case because I don’t know what to do once I get it.”

Well, in the fall of 2018, a small group of Knoxville attorneys decided to do something about that.

of experience. Due to demand, Lab memberships are on three month terms (which are renewable for additional three month terms depending on availability). As such, newly licensed attorneys who join the Lab only commit to an investment of $150. A Knoxville attorney can barely get a downtown parking pass for $150. The Lab is bar none the best investment any newly licensed attorney can purchase.

It has been just over a year since the Lab started accepting applications for membership. In that year, the Lab is proud to announce that it has accepted 15 new members. Of those 15, 11 were newly licensed attorneys, three were experienced attorneys looking for office space solutions, and one was a law student who just wanted to get a leg up on his classmates.

And the results have been extraordinary. Take Lab member Jessica Ramsey, for example. Jessica went to law school at Liberty University. She graduated law school in 2018, passed the July bar exam, and was sworn in last November. She had absolutely no connections to the Knoxville legal community whatsoever. The day after she was sworn in, she applied for the Lab and was accepted. That next day, the Lab took her down to the courthouse, introduced her to everyone she needed to know, and taught her how to practice law in that courtroom. One year later, Jessica is still a Lab member, with her own law firm and an active case load of over 100 cases, which allows her to easily bills eight hours a day. Barring some unforeseen event, Jessica’s career is set at 26 years old.

The Lab is looking to help other attorneys, like Jessica. If you’re a local attorney who could benefit from a Lab membership, or if you’re a more experienced attorney willing to serve on our panel of volunteer mentors, please contact us at mjs@stulaw.org or 865-766-4170.

We believe the Lab is advancing the practice of law in East Tennessee. We hope you will be a part of it.

I

ts goal is to provide new attorneys and solo practitioners a solid foundation for practicing law.”

These attorneys formed The Tennessee Law Lab, Inc., the state’s first ABA recognized law incubator. The Lab is a 501(c)(3) nonprofit with offices in the First Tennessee Building in downtown Knoxville. Its goal is to provide new attorneys and solo practitioners a solid foundation for practicing law. In particular, the Lab offers its members opportunities for mentorship to fill these educational gaps. Additionally, and just as importantly, the Lab offers its members office space, conference room space, a receptionist, phone forwarding, unlimited commercial copying/ printing, shredding, ACAP assistance, and a downtown parking pass.

And the best part – all of these services are offered for as little as $50/month. That’s right – the Lab provides its members all of these services for as low as $50/month. And it’s open to any attorney, regardless

24

DICTA

December 2019

WELL READ By: Wendy A. Bach

Professor of Law, University of Tennessee College of Law

EVICTED: POVERTY AND PROFIT IN THE AMERICAN CITY “The home is the center of life. . . [at home] we can be ourselves.”

Matthew Desmond

Every year students enrolled in UT’s Advocacy Clinic get an assignment they probably haven’t had since high school: summer reading.

They read Michael Desmond’s Evicted: Poverty and Profit in the American City.

In 2008 and 2009 Desmond spent most of his time living among eight poor families in Milwaukee as they struggled to maintain housing. In the book, we meet those families and their landlords, and, for 292 pages, we live among them too. We see them struggle and celebrate. We get a window into how difficult it is to maintain a life when there’s no reliable place to call home.

We assign this book with a caveat. Before they start representing people who are living in poverty, we want our students to have some context, to understand what their clients’ lives might be like. This particular book is breathtakingly good at providing that context. It is heart-wrenching and beautiful, and it challenges everything you think you know about homelessness, poverty, markets and fairness in America.

At the same time, though, we remind them that reading about the struggles, joys, choices and material constraints of one family or eight is only just that. Each of their clients will have a unique story to tell.

Although we don’t foreground it, we have another motive for the assignment. Some of our students have lived in poverty; some have experienced racism, but the majority have not. And many have absorbed the not so subtle messages about poverty and race that pervade our culture. All around our students the slurs – deadbeat dad, welfare queen, anchor baby, junkie, slumlord – are all too easily spoken. Blame comes fast and hard. But Desmond does not allow his readers those luxuries. Readers are forced to see these families in their beautiful, messy complexity.

Take for example, Sherrena, Arleen, Crystal and Trisha. By chapter fifteen, we have known Sherrena and Arleen for almost 200 pages. Sherrena is an African American “school teacher turned inner-city entrepreneur.” She is tough and has leveraged her comfort working on the North Side of Milwaukee into a flourishing business. Sherrena owns “three dozen inner-city units, all filled with tenants around or below the poverty line.” She nets roughly $10,000 a month. As she explains to Desmond, “the ‘hood is good. There’s a lot of money there.”

We meet Arleen and her sons Jori and Jafaris on page one. The family moves five times in less than a year. The first move comes when they are evicted because a man kicked in the front door, angry that the boys had thrown snowballs at his car. Second is a four-month stay in a December 2019

homeless shelter, which “everyone called the Lodge so you could tell your kids, ‘We’re staying at the Lodge tonight,’ like it was a motel.” Third is a house that Arleen loved because it was spacious but often had no water.

Within weeks that house was deemed “unfit for human habitation.”

Fourth is “a drab apartment deeper in the inner city . . which [Arlene] soon learned was a haven for drug dealers. She feared for her boys, especially Jori – slack-shouldered, with pecan-brown skin and a beautiful smile – who anyone would talk to.” After four months, they moved a fifth time, to another apartment that cost $550 a month, 88% of Arlene’s monthly income. Sherrena is their landlord.

Crystal is eighteen when she meets Arlene. She “was placed in foster care at age five and had bounced between dozens of homes.” (160) Crystal rents the $550-a-month apartment once Arleen and her boys get an eviction notice, takes pity on the family and lets them stay. Trisha lives upstairs with an abusive boyfriend. After a particularly loud beating, Crystal calls 911. That leads to notice to Sherrena that her property has become a “nuisance.” The letter threatens Sherrena with substantial fines and jail time. Her first attempt to abate, that she will “ask” Crystal to vacate if the problems worsen, is rejected. Her next attempt, which included an eviction notice, is accepted. The result: no nuisance fine or jail for Sherrena and once again eviction for Arleen, Jori, Jafaris and now Crystal too.

The book is filled with these stories. Landlords making a profit – the other landlord in the book nets $447,000 per year – sometimes exercising compassion but also supported by laws and regulations that enable them to make that profit. And tenants, trying to maintain homes, making complicated choices, seeking stability, and trying to survive.

For students, often the most memorable moment in the book involves Larraine, a woman who lives in a trailer park. In chapter eighteen she spends her entire monthly food stamp allotment on a lobster dinner. For those around her, this is just another example of bad choices, but Desmond sees it differently. “People like Larraine live with so many compounded limitations that it was difficult to imagine the amount of good behavior . . . that would allow them to lift themselves out of poverty . . . So they chose not to. Instead they tried to survive in color, to season the suffering with pleasure.” For Larraine “it was worth it. ‘I’m satisfied with what I had . . . And I’m willing to eat noodles for the rest of the month because of it.’”

The students read Evicted before the course starts, but we don’t talk about it until mid-way through. By then they have seen first-hand what Desmond teaches – that humans we judge from afar are far more complex when we stand next to them; that poverty, bias, and law all constrain our collective ability to choose, and that, for the most part, the rules are written by the winners. The book may have shocked them over the summer, but for most, it rings all too true by the middle of the semester. Evicted is, by any measure, a stunning book. When I asked my colleague Joy Radice, who designed this piece of our curriculum with me, what to say in this review, she said, “tell them to read it.” She’s absolutely right, you should.

DICTA

25

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

OUR FOUNDING SCOUNDREL

“The History of our Revolution will be one continued Lye from one End to the other. The Essence of the whole will be that Dr Franklins electrical Rod, Smote the Earth and out Spring General Washington. That Franklin electrified him with his Rod – and thence forward these two conducted all the Policy Negotiations Legislation and War.”1

As John Adams noted just a few years after the American Revolution, we tend to deify our Founders. We carve them in white marble and place them on pedestals, rather like golden calves.

Like the Israelites, however, we risk creating false gods. For our Founders, remarkable as some of them were, were also human.

Thomas Jefferson wrote that “all men are created equal” (sorry, ladies) while owning slaves. James Madison could think deep thoughts about government and human nature because hundreds of enslaved humans did all of his heavy lifting. Even the big guy, George Washington, was a slave driver, as well as a drug dealer. His main sidelines were alcohol and nicotine.

And then there’s our own local Founder, a fellow named William Blount.

If you don’t know much about Blount, don’t feel too bad. Even some native Knoxvillians are largely ignorant of the former proprietor of that old house near the corner of Gay Street and West Hill Avenue somewhat grandiosely called “Blount Mansion.” Turns out, it was a mansion in 1792, the year it was built, because most other local citizens lived in far more modest homes. And Blount was a pretty important guy – George Washington had just appointed him the Governor of the newly-formed Southwest Territory, which covered pretty much everything we now call the State of Tennessee.

To understand the Blount Conspiracy, you have to understand the importance of the Mississippi River to our young nation. In addition to forming the western boundary of many states and territories, including Tennessee, the river was the major north-south trading route for the entire continent. And Spain controlled it, at least for the moment. The French would shortly horn in, and some observers feared that they would cut off American trade. (American relations with France were pretty fraught in the 1790’s, eventually leading to something called the Quasi War. It was a big deal. Kind of like quasi-judicial proceedings).

In the meantime, Blount and his family had acquired millions of acres of western land, the value of which depended upon proximity to trade routes leading to the Mississippi. So Blount decided to approach Great Britain to broker a deal: Blount would lead military expeditions against Spanish settlements along the Mississippi and in Florida, while the Royal Navy would secure the coast. Blount thought it would be good for American trade (especially his own American trade) to have the Brits in charge. Others may have pointed out that, had Blount’s plan succeeded, the United States would no longer face a weak and declining empire (Spain) on its southern border, but a strong and ascending rival (Britain), the Mother Country with which it had never quite made peace.

Hmm. Soliciting a foreign power to intervene in American affairs for personal gain? Not a particularly good idea. Indeed, Blount’s plan violated federal law, including that pesky Constitution he had signed, which gave the power of declaring war to Congress, not to individual self-dealing citizens.

Blount had befriended Washington years before, notably during the Constitutional Convention of 1787, which Blount attended on behalf of his native North Carolina, which then claimed Tennessee as its western territory. Indeed, that is perhaps Blount’s most notable claim to fame – he didn’t say much during the Convention, but he stuck around long enough to sign the document, which makes Blount’s home the only home of a signer not located within one of the original 13 states.

Once he got to Tennessee, Blount did some significant things.

He negotiated the Treaty of the Holston, which ameliorated, for a time, conflicts with the Cherokees. He named the new city in which he resided after his boss (whom he despised) Henry Knox, the Secretary of War. He established a territorial government. He ushered Tennessee into statehood in 1796. He was elected as one of Tennessee’s first United States Senators.

But then, as the saying goes, he broke bad. Actually, he had been bad, well, forever, following a family tradition of using his various public offices for private gain. And he had pretty much gotten away with it. But as he headed toward the new U.S. capital in Washington City to assume his new office, word got out of something impossible to ignore: the Blount Conspiracy.

When word of Blount’s shenanigans reached the nation’s capital (via a very ill-considered letter written by Blount himself, which outlined the entire scheme), there was an immediate uproar. Over the next two years, the House of Representatives impeached Blount. The Senate, arguing that the House’s impeachment power did not extend to U.S. Senators, decided to expel Blount instead. Even Blount’s erstwhile friend, former President Washington, abandoned him. Commenting on Blount’s letter, Washington wrote: I hope that the author will receive all the punishment which the Constitution and Laws of this country can inflict and, thereafter, be held in detestation by all good men. To seek private emolument at the expense of public peace perhaps at the expense of many innocent lives . . is a crime of so deep a dye as no epithet can convey an adequate idea of to my mind.”2

There’s more to Blount’s story, much more than I can cover here.

That’s why I’m partnering with the good folks at Blount Mansion to offer a series of presentations over the next few months on our ethicallychallenged Founder. Stay tuned.

1

2

John Adams, Letter to Benjamin Rush, April 4, 1790. Available from the National Archives website at https://founders.archives.gov/documents/Adams/99-02-02-0903.

Quoted in: Steiner and McHenry, The life and correspondence of James McHenry (Cleveland: Burrows Brothers Co., 1907) p.262.

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

26

DICTA

December 2019

LONG WINDED By: Jason H. Long London Amburn

LOCK HIM UP (GEORGE BAILEY CHRISTMAS EDITION)

With December upon us, I thought I would take a look back at one of my favorite holiday films, “It’s a Wonderful Life.” Frank Capra’s 1946 feel good classic stars Jimmy Stewart as hero George Bailey, who realizes that the selfless life he lives has value and indeed makes him the “richest” man in town. I don’t have space in this column to recount plot points or educate those who, for some reason, have managed to live their entire adult life without seeing this film. Just be aware that, if you have lived under a rock to this point, without seeing Donna Reed as Mary Bailey or Lionel Barrymore as Old Man Potter, then you are going to need to stop here and watch the film before reading further. This column requires a certain level of sophistication and movie knowledge.

This movie has been picked apart in every way possible over the past seventy years. Yours truly has written no less than five different DICTA articles that reference the film. The challenge is to find a new, unexplored angle worthy of attention. Perhaps I am becoming more cynical as I get older, or perhaps the current toxic political environment (on both sides) has colored my perceptions. In any event, today I explore whether George Bailey really is a criminal and should have been indicted at the end of the film. Before you dismiss my thesis, consider that there are a number of red flags in the movie that suggest George is a danger to society and belongs behind bars.

Red Flag Number 3. As George doles out his money to the people, he doesn’t make them sign any receipts and it does not appear anyone is keeping track of the money being paid, not to mention that he is co-mingling funds at this point. At best, this is grossly negligent execution of his fiduciary duty. I used to get misty-eyed every time Mrs. Davis came up and meekly asked for $17.50. George gets so excited that she is willing to take less money that he kisses her right then and there. Probably a sexual harassment claim in the making, but it was the 1930s.

I

s George trying to kill himself in hopes that his family can defraud the insurance company and collect on a policy that surely is not meant to pay out in the event of suicide?”

Red Flag Number 1. Flash forward to the day of George’s wedding. George and his new bride, Mary, are sitting in the back of Ernie’s cab, on their way from the reception, to leave for their honeymoon with a “kitty” of $2,000. I was curious to know if that was an expensive honeymoon for their day. We know that George and Mary had their first “date” the night of Harry’s graduation from high school (Class of 1928). They resumed the courtship four years later when Harry returned from college (1932). We know the final scenes take place in 1945 and include their children, some of whom appear to be nearly teenagers.

Assuming that George and Mary waited to consummate the marriage, it’s a pretty safe assumption that they got married sometime in late 1932, possibly early 1933. Adjusted for inflation, $2,000 in 1932 would be worth $34,415.48 today. They were going to spend $34,000 on their HONEYMOON? Also, 1932 was smack dab in the grips of the Great Depression. While George and Mary’s neighbors were standing in soup lines, these two were able to blow $34,000 on a honeymoon? Does anyone question where George got this kind of money?

Red Flag Number 2. The day of the wedding, there is a run on the bank. George explains to his investors that the money is not at the Building & Loan, but is being used to build houses for others (sounds a little like a Ponzi Scheme). George begs everyone to stick together to prevent Potter from buying up all of the shares. He offers up his own money to tide people over until the bank reopens. I do not know December 2019

the regulations, as they existed in 1932, regarding Building & Loan institutions, but I have to believe that they were required to keep some amount of cash on reserve for emergencies. Apparently not the Bailey brothers. Their vaults were empty until George showed up with his $2,000 in ill-gotten gains.

Red Flag Number 4. George trusts his business partner/uncle Billy to handle major deposits and accounting decisions. It was Uncle Billy who turned over all of the cash to the bank during the great run of ‘32. Since the movie began, we have not seen Uncle Billy do one thing right. Even though he is a co-owner of the Building & Loan, he isn’t allowed to speak to the investors when Potter initially tries to take over.

Uncle Billy gets too drunk at Harry’s wedding to successfully walk home. His tickler system is to tie strings to his fingers to remind him to do things. Even with that failsafe system, he forgets George’s wedding. In short, Billy is portrayed throughout the movie as an incompetent fool.

Nonetheless, on Christmas Eve 1945, George gives him $8,000 to deposit for the Building & Loan, which he promptly loses. Again, this appears to me to be criminal mismanagement.

Red Flag Number 5. George attempts to take his own life at the end of the movie when Potter sees his life insurance policy and points out that he is worth more dead than alive. Is George trying to kill himself in hopes that his family can defraud the insurance company and collect on a policy that surely is not meant to pay out in the event of suicide?

Red Flag Number 6. The whole town turns arrives to bail out George and, once again, his expert record keeping practices come in to play. People are just throwing money in a jar and announcing their support for George. A touching scene to be sure, but hardly a way to run a financial institution.

In short, there are a number of instances in the movie that raise grave concerns for George’s banking practices. The message of the movie will always be about the greater value of man taking care of his fellow man. Nonetheless, I just can’t help but wondering how long it will be before George’s negligent practices catch up with him. How many times can Mr. Martini bust open the jukebox to cover for this criminally negligent man?

DICTA

27

BARRISTER BITES By: Angelia M. Nystrom, JD, LLM University of Tennessee Institute of Agriculture

BARRISTER BREWS

To quote my husband, “Even a blind squirrel finds a nut sometimes.”

T

While I usually write about great food and the lawyers who love to make it, I have always wanted to write about a lawyer who brews beer. Unfortunately, as a nonbeer drinker, I didn’t know one. Then, I had the good fortune to sit next to Judge Michael Simpson at eighth grade parent-teacher night. While we waited for the rest of the parents to get to the classroom, we started talking about “Barrister Bites,” and I mentioned that I wanted to find someone who brewed their own beer. Judge Simpson related that he was a home brewer and would be willing to share his secrets.

“I began brewing my own beer just a few years ago and in truth, it was largely an excuse to go and hang out with one of my old friends,” says Judge Simpson. “My friend Steve Ogle, who is the Clerk and Master in Blount County, has been brewing his own beer for decades now, and everything that I know about the process I have learned from him. He and I have been friends since the 7th grade, meeting in Mr. Hooper’s Science class at what was then Bearden Junior High School. It is somewhat appropriate that we met in science class as the brewing process itself is part cooking and part science experiment.”

I asked about how one gets started brewing. He relays, “There are a number of different approaches to this process, and the one we use would probably be considered the easiest and simplest for someone just getting started in their own home kitchen.”

“The process begins much like any other recipe with the gathering of all the necessary ingredients. This part has been greatly simplified by the fact that there are readily available kits that can be purchased which contain everything needed to make a batch. These kits are available locally and online and represent a wide variety of different kinds of brews depending upon your particular taste. The equipment required is relatively simple and inexpensive and is also easily obtained and can be cleaned and reused for many years.”

“The kit includes a selection of grains which are placed in a cheesecloth bag and steeped in about a gallon of boiling water. Much of the flavor of the final product is determined by the characteristics of the grains provided. Prior to placing the grains in the water, it is a good idea to place the cans of malt extract in the boiling water in order to help liquify the malt as it is very thick, much like molasses, and can be removed from the can much more easily if it is warmed first. After the grains have been given an opportunity to sit in the boiling water for about thirty minutes or so, they are removed and the malt is added and the slow boil continues. This is when a wonderful aroma begins to fill the kitchen, much like the smell of fresh bread being baked.”

28

“My friend Steve is an expert, and like most good cooks, he can look, taste and smell and know what to do and when; however, the beginner may want to have a thermometer on hand to monitor temperatures as this can have a significant impact on the flavor and alcohol content of the finished product. During this cooking time both aroma and bittering hops are added to the mix and this, too, provides much of the flavoring of the final brew.”

o quote my husband, ‘Even a blind squirrel finds a nut sometimes.’ ”

“After cooking is complete, the mixture must be cooled to around room temperature before the yeast can be added. High temperatures will kill the yeast and ruin the batch. We simply pour our gallon or so of mixture into a large glass jar and fill it up with tap water to start cooling down the wort. It is also important to leave some room at the top of the jar to allow for the expansion, bubbling and foaming of the brew during its initial fermentation period. A special air lock is placed in the top of the jar to allow for the escape of carbon dioxide, a by-product of fermentation. Despite the lock in the top and extra room in the jar, it can still make a mess by bubbling over, so a catch tray underneath is a good idea.”

I asked if the beer was ready to drink. Judge Simpson said, “No. The mixture needs time and should sit for at least a month. The yeast will dine on the sugars and the brew will begin to clear.

After the thirty days, bottling can occur. A small amount of priming sugar is dissolved in about two cups of boiling water and added to the mix. This will wake the now sleeping yeast back up, it will feed on the sugar and the carbon dioxide produced during this second fermentation period will add alcohol content and carbonization. The now bottled beer needs to be cellared for another month before enjoying, but it can be fun to age some of the brews as the time in the bottle will change the flavor over time. If the beer doesn’t taste good at first, wait and try another, as it may just need some time to develop.”

I asked for final tips for the novice. “Advice to the novice brewer would be that cleanliness is critical. All of the equipment, hoses, bottles and caps must be spotlessly clean and free of bacteria or the batch will be ruined. This is accomplished either by boiling or washing in a bleachwater solution. The other advice would be to have fun! Find a friend that you can share the experience with and experiment with your recipe.

Adding fruit, honey and clearing additives can all drastically change the final beer and make the brew truly unique and original. My favorite part, however, is being able to spend time with my old friend, sharing a few laughs and remembering old times.”

DICTA

December 2019

BENCH AND BAR IN THE NEWS KALA SALARY SURVEY AVAILABLE The Knoxville Chapter of the Association of Legal Administrators (KALA) conducts a survey each year that includes general salary information and fringe benefits. If you would like to purchase a copy of the survey, please contact Charlotte Welch at cwelch@opw.com.

The cost of the survey is $150.00.

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.

OFFICE SPACE AVAILABLE:

TENNESSEE INNOCENCE PROJECT LAUNCHES The Tennessee Innocence Project (TIP) held its inaugural fundraiser on October 23, raising awareness and approximately $135,000 in support of the organization’s mission to exonerate innocent men and women wrongfully convicted in Tennessee. Nearly 300 individuals attended the event. TIP Executive Director Jessica Van Dyke announced Bass, Berry & Sims attorney Danielle Dudding Irvine will begin a six-month fellowship at the organization starting January 2020 as part of Bass, Berry & Sims’ Pro Bono Program.

•

West Knoxville-Bearden Office Space - West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com.

•

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area.

One Level. Offices on either side occupied by long-term law firms.

Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Penny A. Arning BPR #: 017874 Egerton, McAfee, Armistead & Davis, P.C. P.O. Box 2047 Knoxville, TN 37901-2047 Ph: (865) 546-0500 parning@emlaw.com

Elizabeth P. Carroll BPR #: 021414 Tennessee Valley Authority 400 West Summit Hill Drive, WT-3C Knoxville, TN 37902 Ph: (865) 300-8777 epclaw@yahoo.com

R. Bradford Brittian BPR #: 007130 Merchant & Gould P.C. 800 S. Gay St., Suite 2150 Knoxville, TN 37929-9709 Ph: (865) 380-5960 bbrittian@merchantgould.com

Mahogany P. Jenkins BPR #: 027326 Brock PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 mjenkins@brockplc.com

John G. Brock BPR #: 017901 Brock PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 jbrock@brockplc.com

December 2019

Teresa M. Klenk BPR #: 019554 Brock PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 tklenk@brockplc.com

Christopher J. Leonard BPR #: 016791 Merchant & Gould P.C. 800 S. Gay St., Suite 2150 Knoxville, TN 37929-9709 Ph: (865) 380-5960 cleonard@merchantgould.com

Lauren L. Sherwood BPR #: 036932 Merchant & Gould P.C. 800 S. Gay St., Suite 2150 Knoxville, TN 37929-9709 Ph: (865) 380-5960 lsherwood@merchantgould.com

Ian G. McFarland BPR #: 030549 Merchant & Gould P.C. 800 S. Gay St., Suite 2150 Knoxville, TN 37929-9709 Ph: (865) 380-5960 imcfarland@merchantgould.com

Gregory D. Sweeney BPR #: 036951 District Attorney General, 18th Judicial District 113 West Main St. Gallatin, TN 37066-3272 Ph: (615) 451-5810 gdsweeney@tndagc.org

Hon. John R. Rosson, Jr. BPR #: 004241 P.O. Box 2749 Knoxville, TN 37901-2749 Ph: (865) 522-2070 rossonlaw@aol.com

DICTA

29

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

PRO BONO SPOTLIGHT By: Kathryn Ellis

Want to Volunteer?

Pro Bono Director Legal Aid of East Tennessee

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

THANK YOU FOR ALL YOUR SUPPORT – FORGING JUSTICE RECAP

On October 18, Legal Aid of East Tennessee held our 4th annual which is more than any other attorney during the same period.

Forging Justice Pro Bono Celebration. The event was a HUGE success

This year’s Pro Bono Law Firm of the Year was Kramer thanks to 41 sponsors, more than 160 attendees, more than 70 silent Rayson. The attorneys at Kramer Rayson have demonstrated a longauction donors, Pistol Creek Catch of the Day, the sound engineering term commitment to LAET through their Pro Bono service to the students of Pellissippi State Community College, law student volunteers at organization. Tom Hale served on LAET’s Board of Directors from the event, and everyone else who gave time and support to the event.

2006 to 2018 and was Board President in 2011 and 2012. During his

The most important part of the event was the recognition of this tenure on LAET’s Board, Hale helped lead LAET through a variety of year’s Pro Bono Award recipients. changes and challenges. Betsy Beck has provided skilled pro bono counsel

This year’s inductee into the Donald F. Paine Memorial Pro Bono and representation to LAET for several years on a variety of critical Hall of Fame was Lynn Tarpy. Lynn Tarpy epitomizes the dedication employment matters, most of which required and received her immediate to pro bono service and access to justice instilled in our community of attention. Other members of Kramer Rayson have also shown lasting lawyers by Don Paine. Lynn is a founding member of the law firm Tarpy, support for LAET and Access to Justice. Wayne Kramer showed support Cox, Fleishman & Levielle who has been a regular Pro Bono volunteer for for both during his term as President of the Knoxville Bar Association Legal Aid of East Tennessee (LAET) for close to two decades. In 2002, and has continued to be an active member of the KBA’s Access to Justice he received the Pro Bono Project Award for providing the most pro bono Committee. Will Carver was instrumental in establishing LAET’s Blount hours. Lynn has assisted on more than 150 cases for LAET clients, many County Saturday Bar program. of which he handled after agreeing to have his firm serve as LAET’s Pillar

Finally, the Pro Bono Community Partner of the Year was Knox Law Firm for bankruptcies.

County Public Defender’s Community Law Office (CLO). Since the

In 2017, when Judge Suzanne Bauknight proposed establishing a first Veterans Legal Clinic in September 2016, the CLO has hosted new Debt Relief Clinic program as a partnership between LAET and the every monthly Veterans Clinic except one. The CLO has also hosted KBA’s Bankruptcy Section, Lynn provided every quarterly Debt Relief Clinic since useful guidance for the project. He also November 2017, as were as the 2017 YOUR SUPPORT HELPED US TO RAISE MORE THAN provided a CLE and training session for and 2018 Knox County Super Saturday $51,000 AT THIS YEAR’S FORGING JUSTICE! members of the section prior to the first Bar events. When the CLO hosts these THANK YOU FOR HELPING US TO SERVE THOSE IN Debt Relief Clinic so that other attorneys clinics, they have at least one staff member NEED IN OUR COMMUNITY! could learn more about some of the unique available to help and readily provide their issues faced by LAET clients. staff attorneys to assist when clients have

Lynn’s ongoing commitment to Pro Bono and to LAET expungement and driver’s license questions. Laura Chambers has been an has become a model for other Knoxville-area attorneys who practice incredible resource and has made the clinic scheduling process a breeze! bankruptcy law. His leadership and willingness to mentor others has Furthermore, the CLO always has tables and chairs set up for the needs of ensured that those following in his footsteps understand the importance of each clinic and always have a pot of hot coffee and bottled water available giving back to the community through Pro Bono service. for volunteers and clients

This year’s Pro Bono Students of the Year were the students of the University of Tennessee College of Law Expungement Clinic. Over Mark Your Calendars: the past two years, the students involved with the UT’s Expungement Clinic have volunteered their time at several major clinics including 2017’s * December 7 (9:00-12:00) – Knoxville Saturday Bar at Help4TNDay clinic in Rutledge and Beck Cultural Center Clinic and LAET’s Knoxville Office 2018’s Monroe County expungement clinic and Faith & Justice Alliance Clinic at Overcoming Believers Church in Knoxville. At Overcoming * December 11 (12:00-2:00) – Veterans Advice Clinic at the Believers, more than a hundred clients received advice, with the majority Public Defender’s Community Law Office having driver’s license reinstatement or expungement issues. The students * December 14 (9:00-12:00) – Blount County Saturday Bar at also go to a regularly scheduled expungement screening in Knox County.

LAET’s Blount County Office The amount of service these students have done for members of our ____________________________________ community most in need in the past two years is immeasurable.

The Pro Bono Attorney of the Year was Kevin Newton. Kevin is * January 4 (9:00-12:00) – Knoxville Saturday Bar at LAET’s a 2013 graduate of LMU’s Duncan School of Law. He is an attorney at Knoxville Office Mayer & Newton, where his practice focuses on bankruptcy law. In 2018, Kevin volunteered at all four Debt Relief Clinics, three Faith & Justice * January 8 (12:00-2:00) – Veterans Advice Clinic at the Clinics, several monthly Veterans Clinics, and the Knox County Super Public Defender’s Community Law Office Saturday Bar. His clinic attendance in 2019 has been just as impressive.

Kevin has also become a regular “phone-a-friend” resource when he is not * January 18 (9:00-12:00) – Blount County Saturday Bar at able to attend a clinic in person. From January 2018 to now, Kevin has LAET’s Blount County Office assisted more than 30 clients through clinic advice or direct representation,

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

30

DICTA

December 2019

Q:

THE LAST WORD By: Jack H. (Nick) McCall

A:

Judge Cerny, tell us about the Veterans Treatment Court and its veteran-to-veteran emphasis.

THE HONORABLE CHUCK CERNY, KNOX COUNTY GENERAL SESSIONS COURT, DIVISION I

We started Veteran’s Treatment Court for one guy! We got started due to a request from one individual veteran who needed help. He wanted a fresh start in a new town, and he had family in Knoxville. He was on probation; it was a condition of his probation that he complete a Veteran’s Treatment Court. Some interested vets approached me and the Recovery Court Director, Ron Hanaver, on his behalf, and asked us to start a VTC. Since we did not have one in existence yet, we had to figure out if we could start one to accommodate this one man. We perceived a need, and if we could help him, maybe we could eventually grow and help other veterans.

We thought we could take advantage of the infrastructure already in place. We already had the Recovery Court’s existing office, budget and paid staff. We integrated the one major piece that was separate and different: we needed veterans to mentor veterans. The program would need veteran volunteers to help the criminal-justice-system-involved vets to get through the process of completing the program. The veterans with whom we met said: “Yeah, if you will run this court, we’ll step up and act as mentors!” So, we started a VTC with one criminal-justice-system-involved veteran and some veteran mentors who just wanted to help.

We have many reasons to be grateful for and proud of our military veterans. But something they have that is truly admirable is, they are a supportive community. They really have a desire to help each other; it’s part of their military training. Their positive influence has impacted our Recovery Court population as well. I often remind our participants in both programs, “You’ve been welcomed into a community. That means you need to rely on each other and help each other.” Our staff tries to remind both our VTC and Recovery Court participants that one of the big goals of both programs is to reintegrate participants into society outside the criminal justice system.

What’s your sense of how veterans become addicted and how the justice system gets involved?

Trauma. The criminal justice system, and even society more recently, has been rethinking the “moral failure” model to explain addiction. My experience, and the training I’ve received as a Recovery Court and VTC Judge, confirms that the addiction process starts with trauma, whether we are referring to one catastrophic event or multiple “micro-traumas.” You can probably guess that combat is traumatic. But service men and women are also exposed to other forms of trauma. It is not commonly known, but there is a phenomenon called “Military Sexual Trauma.” Our court has helped several MST victims.

Remember, not all victims of MST are female, and not all have been victimized by one perpetrator at a time.

I’m glad that our staff has the skill sets to help people who have faced this. The military trains people to be in combat together and have each other’s back, but then MST happens. It’s still something I’m trying to process myself.

The fact that we have to cobble together, in our court treatment programs, a way to help victims of military sexual abuse – male and female – is complicated.

Regardless of what a veteran has experienced before we meet them, it is really gratifying when a participant completes our program. Then, we can see people who can turn things around after something so catastrophic to their psyche. It’s going to be hard for the military to address this sexual violence crisis to the general public; it’s not something the public generally knows about.

So addiction is often a result of factors that are external to a person, as opposed to moral failure?

I’m no expert, by any means, but trauma happens to people. When people self-medicate, it often goes back to trying to minimize the pain caused by trauma. Scientific, evidence-based, trauma-informed-care studies confirm this. Recovery-court judges are taught at national level continuing education to be aware of trauma, and what kinds of things can get addiction processes started.

It’s not like people aspire to this path. If you ask a little kid what they want to be when they grow up, they never say, “I want to be a drug addict with a felony record!” This doesn’t mean, though, that people are completely victims: people have choices. Our VTC staff understands that: personal choice and being accountable is important. Certainly, there are some people who are so vicious they have to be removed from society because we have good reason to fear that they can’t change. Those persons are not candidates for our court treatment programs.

If you want to reduce recidivism and save taxpayers’ dollars, it’s a natural, collateral consequence that VTC and Recovery Court participants will also have better lives. I fervently believe that; that’s why I try to spend extra time with these programs. Our community simply needs these special, problem solving courts. I don’t believe that people are disposable. You don’t throw human beings away because they have made unfortunate decisions.

While you’re not a veteran yourself, was there something in your past that gave you the motivation to be involved in Veteran’s Treatment Court?

This may sound a little syrupy, but to me, it comes back to my mother.

Imagine me at five years old, and my mom is holding me on her lap. She hugs me and gives me a big squeeze and tells me, “You’re my little bird!” I was at that point in my life where I want to be thought of as a “big boy.” So I try to push her away and tell her, “I’m a big boy! I’m not a little bird!” She grabs me tighter and tells me, “You will always be my little bird.”

Fast-forward to me as a young adult, trying to keep a job, pay bills, and “make it on my own.” I’ve just experienced some failure I thought was catastrophic at the time; now, I can’t even remember what it was. I’m at a fast-food place, and they have outdoor seating, and there are little finches and sparrows scurrying around, trying to avoid getting stepped on, and trying to get food scraps that have fallen on the ground. They are so fragile, and even though they aren’t big or colorful or flashy like other birds, they are so tender and cute. One of them looks me dead in the eye, I look down at my food, and I look back and say, “Dude, I’m sorry about the chicken nuggets! But I’ve got some fries!”

Are you sure you didn’t get this from the Bob Marley song?

I thought this was a revelation from my higher power! Seriously, mom called me her little bird about 1966-67. (Marley’s album “Exodus,” with “Three Little Birds,” came out in 1977, but I never heard the song until the ‘90’s!)

Anyway, I knew in that moment at the fast-food place what my mother was trying to tell me, and what she wanted me to always remember: to her, I would always be precious. I might be fragile, maybe not big like an eagle or flashy like a parrot, but I would always be tender, precious and even cute to my mom.

Somehow I knew in that moment that our creator thinks of me the same way my mom did. And beyond that, our creator thinks of all of us that way: we are all tender, precious, fragile and even cute to somebody, even if our mothers didn’t say so. Everybody is somebody’s “little bird.”

“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 December 2019

DICTA

31

Prsrt Std US POSTAGE

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

P.O. Box 2027 Knoxville, TN 37901

ANNUAL MEETING & ELECTIONS

KBA Annual Meeting & Elections The Annual Membership Meeting will be held on Friday, December 13, 2019 at 8:30 a.m. at the Main Assembly Room of the City County Building. A continental breakfast will be available at 8:00 a.m. in the Small Assembly Room. At the end of the meeting, Hanson R. Tipton will assume the presidency.

Download the full Annual Meeting Notice and read the candidate bios by clicking on December 13 in the events calendar at www.knoxbar.org.

The Nominating Committee recommends that the following KBA members be placed in nomination at the Annual Meeting: President-Elect: Cheryl G. Rice Treasurer: Jason H. Long Secretary: Loretta G. Cravens

4%

INCREASE IN MEMBERS

Highlights AWARD PRESENTATIONS INSTALLATION OF NEW PRESIDENT ELECTION OF OFFICERS

Three-Year Terms: (Vote for 3) Melissa B. Carrasco Mark A. Castleberry Meghan H. Morgan Michael J. Stanuszek Elizabeth M. Towe Taylor A. Williams One-Year Government/Public Sector Position: Hon. Kristi M. Davis According to Article VI, Section 1, of the KBA By-Laws: "Nominations may also be made from the floor during the Annual Meeting by any member in good standing."

Vote by absentee ballot at the KBA Office from November 27- December 12. Questions about voting?

Call the KBA Office at (865) 522-6522.

WWW.KNOXBAR.ORG