Nashville Bar Journal | March 2016

Nashville Bar Journal MARCH 2016 • VOL 16 • NO 2

Tennessee's Waltz with Charter Schools Caroline Sapp Hudson

Net Neutrality A response article to Nits and Nats of Network Neutrality

Wade Sims

Basic Tips for the "Curiouser" World of Estate Planning Harlan Dodson & Cindi Henry

Death and Dignity: John Jay Hooker, Jr. Eleanor Wetzel

YOU CHOOSE THE CHECKING WE’LL PAY YOUR NBA DUES Open a First Tennessee checking account with direct deposit, and we’ll pay your Nashville Bar Association membership dues (currently a $245 value) for one year. We have several great checking options you can choose – each available with the convenience of free Banking Online and Mobile Banking.

Learn more at FTB.com/checking or present this ad at any financial center in Middle Tennessee. See terms and conditions below for offer details.*

*

Terms and Conditions: Offer valid beginning with the enrollment of Nashville Bar Association membership year beginning November 1, 2015. Offer expires March 31, 2016. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by June 30, 2016. FSR: Use promo code NBADUE. ©2015 First Tennessee Bank National Association. Member FDIC.

Articles

Departments

6

2

From the President

4

Communique

Tennessee's Waltz with Charter Schools: .

When Will the Music Stop?

Caroline Sapp Hudson

10 14

In Defense of Net Neutrality

Joycelyn Stevenson

Wade Sims

Race Judicata • Arts Immersionn NBA Calendar of Events

Basic Tips for the "Curiouser" World of Estate Planning

Center Insert

Harlan Dodson & Candi Henry

16

Non-Profit Spotlight: Soles 4 Soles

18

Death and Dignity: John Jay Hooker, Jr.

Marjorie Kaup Haines, Esq. Eleanor Wetzel

Columns

Continuing Legal Education (CLE)

20 21 22 23

9

Capitol Notes

12

Gadget of the Month

24

Nathan H. Ridley

100% Club Members NBA Member Benefits Disclosure

Announcements • People on the Move • Firm News

2016 Premier Members, New NBA Members, Dial-A-Lawyer Classifieds

Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

Golden Oldies

Who can name these guys?!

Be the first person to email the correct answer to jill.presley@nashvillebar.org and your name (along with the correct entry) will appear in next month's issue. Additionally, if you have any photos to submit for the Golden Oldies, please send to the email above.

February 2016 Golden Oldie Don Smith of Smith Cashion & Orr, PLC correctly identified the individuals in the February 2016 Golden Oldies photo.

Pictured (left to right) were David Rutherford, Richard "Big Bird" Bird, Al Abbey, and Tom White.

' A Monthly Publication of the Nashville Bar Association

Joycelyn A. Stevenson, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

Editorial Committee Kimberly Faye Carline Sapp Hudson Tracy Kane Bill Ramsey Kristin Thomas Victoria Webb Eleanor Wetzel David Winters

Nashville Bar Association Staff Monica Mackie Executive Director ----------Shirley Clay Finance Coordinator Wendy Cozby Lawyer Referral Service Coordinator Traci Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Jill Presley Marketing & Communications Coordinator Vicki Shoulders Membership Coordinator • Office Manager

The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy.

POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork.

All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219 615.242.9272 • Fax 615.255.3026 NashvilleBar.org

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Nashville Bar Journal • March 2016

From the President Valuing Diversity

By Joycelyn A. Stevenson As I write this article, we are celebrating the conclusion of Black History Month in February and the beginning of Women’s History Month in March. We have seen many strides in the area of diversity since the start of the civil rights and women’s rights movements. The men and women who were denied access to justice and advancement in the legal profession fought heroically and to provide opportunities for many who followed in their footsteps. More and more women and people of color are attending law school and practicing law. Those who fought valiantly for the rights of so many would be pleased to see that the level of diversity in our city and frankly, within our bar association, is better than it was 30 years ago. Better, however, does not mean that the legal profession does not have a long way to go in attracting and retaining diverse attorneys.

The American Bar Association’s (ABA) Commission on Women in the Profession publishes a resource entitled, “A Current Glance at Women in the Law.”1 The most recent publication in 2014 provides that 34% of attorneys in the legal profession are women. While 44.8% of associates at law firms are women, less than 4% are managing partners in the 200 largest law firms in the country, with 17% being equity partners.

Of the Fortune 500 general counsels, 21% are women, with African-American women making up only 10.4%. Women make up 27.1% of federal and state judgeships. So while there has clearly been progress, there is more work to do. This same Commission published a study entitled “From Visible Invisibility to Visibly Successful” in 2006, addressing success strategies specifically related to law firms and women of color.2 That report addressed statistics related to percentages of women of color and specific disparities experienced over time. Ten years later, the ABA is still focused on evaluating and creating solutions to what still is a very important issue in our profession.

In response to the continuing need to tackle issues associated with diversity in our profession, the ABA has recently announced several initiatives related to diversity in the legal profession including the creation of the “Commission on Diversity and Inclusion 360.” This Commission is designed to evaluate the best practices and methods to promote diversity and inclusion—including analyzing implicit bias—creating a pipeline from elementary to law school in order to increase the amount of diverse talented professionals.

The ABA has recognized that while attracting talent to the profession is one thing, retaining that talent and providing actual opportunities for advancement are completely different. Inherent in some of the statistics mentioned above are questions as to what happens to the large number of diverse attorneys—including women and people of color—who enter the legal profession over the course of a 20-year career. How many start their own practices? How many make partner? Equity Partner? How many make it to the highest level of the corporate of government agency where they work? If they don’t make it far, what is the reason? Is it a matter of fit? Are there other intrinsic, intangibles that factor into the ability of diverse attorneys to remain successful in environments where they are the clear minority? Countless numbers of articles, task forces and summits have been commissioned to tackle this issue. The Nashville Bar Association (NBA) held a diversity summit around the same time as the Commission’s task force on “Visible Invisibility” and just held another one on March 3, 2016, recognizing that the progress made will not be sustained without constant nurturing.

2016 NBA BOARD OF DIRECTORS

The NBA and ABA are not unique in their focus on the importance of diversity and the continued existence of challenges for women and attorneys of color underscore the necessity of that focus. Specifically, the idea of creating a sustainable pipeline for diverse talent to enter the legal profession is of great importance to the NBA and part of one of many strategic initiatives to increase the diversity of our membership. In addition to the Diversity Summit that was held on March 3, the Nashville Bar Association will continue its efforts to increase the number of diverse attorneys involved in the bar. The Bar recently held its 1L Minority Job Fair placing talented minority attorneys in law firms, agencies, and corporations for the summer. The High School Minority Internship program will also continue this year. This program places high school juniors and seniors in law firms, government agencies, and private corporations throughout the summer. The program provides students with mentors and an opportunity to network with attorneys, judges, and government officials in addition to lunch-and-learn sessions each week. Several of our minority high school students have attended law school and now work in some of our prominent Nashville institutions, proving that this model works if we invest the time and resources.

The Bar, like the profession itself must reflect the community that we serve. In addition to continuing the many projects that we already have in the pipeline addressing the issue of diversity, the NBA will also partner with other bar associations—Lawyers’ Association for Women and Napier Looby Bar Associations, among others—with similar missions to advance the diversity of our profession and to advance opportunities for access to our legal professionals.

To the extent you are a member of another organization looking for opportunities to collaborate on these issues, please reach out to our Diversity Committee chair, Raquel Bellamy or contact the bar office with information on your proposals or ideas. While Black History Month and Women’s History Month are important times of the year to reflect on these issues, increasing diversity in our profession and our bar should be a constant goal. n

Joycelyn A. Stevenson, President Nathan H. Ridley, President-Elect Matt Potempa, First Vice President Andrea P. Perry, Second Vice President April Knox, Secretary Eric W. Smith, Treasurer Stephen G. Young, Assistant Treasurer Edward D. Lanquist, Jr., Immediate Past President Justin McNaughton, YLD President Lela Hollabaugh, General Counsel Irwin J. Kuhn, First Vice President-Elect Claudia Levy, Second Vice President-Elect Mark S. Beveridge Robert C. Bigelow Hon. Joe P. Binkley, Jr. Hon. Sheila D. Calloway Kay Caudle Jacqueline B. Dixon Samuel P. Funk Margaret M. Huff Hon. William C. Koch, Jr. Ryan D. Levy Wendy Longmire Hon. Randal S. Mashburn Erin Palmer Polly David L. Raybin Sara F. Reynolds Saul A. Solomon Laura Smith Tidwell M. Bernadette Welch

NASHVILLE BAR ASSOCIATION Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed, and keep connected with fellow attorneys. From sole

Endnotes ABA Commission on Women in the Profession, A Current Glance at Women in the Law (July 2014), available at AmericanBar.org/Groups/Women.html.

1

2 ABA Commission on Women in the Profession, Visible Invisibility: Women of Color in Law Firms (2006). The Commission also published Visible Invisibility: Women of Color in Fortune 500 Legal Departments in 2012.

practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system.

Our Bar Association is much more than just a collection of services. The power of our membership lies in the power of the people.

WE are the Bar.

Follow us on Social Media Facebook.com/NashvilleBarAssociation @NashvilleBar LinkedIn.com/Company/Nashville-Bar-Association

And together, we shape the future of the legal profession.

Got an Idea for an NBJ Article?

We want to hear about the topics and issues readers think should be covered in the magazine. Send ideas to jill.presley@nashvillebar.org!

Nashville Bar Journal • March 2016

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communiqué 13th Annual Race Judicata The NBA’s Young Lawyers Division 13th Annual Race Judicata will be held on April 9, 2016 beginning at 8:00am.

Both the 5K/10K are flat, fast, and certified courses that run along the Harpeth River Greenway at Edwin Warner Park. Awards will be presented in each race, three deep, in the following categories: 1) overall, 2) masters, and 3) age group.

In addition, Nashville’s barristers will also be able to zealously represent their respective law firms by competing for the coveted titles of Fastest Male and Female Lawyer and Fastest Firm (the combined time of three lawyers). Firm team names and rosters must be provided via email to Wally Irvin at wirvin@lewisthomason.com no later than noon Thursday,

April 7, 2016.

Proceeds from the race will benefit two local charities—ABLE Youth and Achilles International Nashville. Follow us on Twitter @racejudicata for more information or visit our Facebook event page.

To register for the race, go to Active.com or scan the QR code to the left with your cell phone or tablet. n

presented by THE ARTS & BUSINESS COUNCIL OF GREATER NASHVILLE in partnership with THE NASHVILLE BAR ASSOCIATION YOUNG LAWYERS DIVISION

May 25, 2016

An evening that showcases live music, pop-up performances, and interactive art. Details regarding featured talent and the silent auction will be announced soon. This event will also feature delicious local fare and ample libations. Arts Immersion is the summer event for everyone from young professionals to artists of all disciplines to music industry veterans—the perfect blend of suits and skinny jeans.

Patron Company ticket packages are available for $400 (10 tickets and recognition in promotional materials) at ABCNashville. org/What-We-Do/Arts-Immersion. Individual tickets are also available for $40 per ticket online or $50 at the door.

All proceeds from Arts Immersion support the Arts and Business Council’s Volunteer Lawyers & Professionals for the Arts program which has provided over $2,000,000 of free legal services to the Nashville arts and entertainment community, serving over 2,500 artists and 400 arts organizations. n

NBA Calendar of Events March 10 CLE Committee Meeting 11:30am

March 17 Editorial Committee Meeting 12:00pm (Neal & Harwell)

March 24 Finance Committee Meeting 4:00pm

March 12 Nashville Bar Foundation Fellows Banquet 6:30pm (Hillwood Country Club)

March 21 Chancery & Circuit Court Committee Meeting 4:00pm

Executive Committee Meeting 4:45pm

March 15 Ethics Committee Meeting 12:00pm

March 24 NBF Trustees Meeting 12:00pm

March 25 NBA Offices Closed for Good Friday

Committee Meetings are held at the NBA Offices unless otherwise noted. Full calendar online at NashvilleBar.org.

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Nashville Bar Journal • March 2016

Nashville Bar Journal • March 2016

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FEATURE

Tennessee's Waltz with Charter Schools When Will the Music Stop?

By Caroline Sapp Hudson I. Introduction Charter schools are multiplying in Tennessee. The Tennessee Department of Education encourages this expansion. For example, just this year, the Department of Education overturned Metropolitan Nashville Public Schools’ decision denying Knowledge is Power Program (KIPP) applications to open two new charter schools in Davidson County.1 KIPP appealed to the Department of Education, which private organizations like KIPP can do as a result of the charter school legislation.2 Now, Davidson County has two new charter schools.3 With so many charters popping up, an important question arises: Should the Department of Education be authorizing additional quasi–public corporations when Tennessee’s charter school legislation may ultimately be found unconstitutional?

II. Unconstitutional Charter School Legislation

“based on the same funding criteria used for non-charter public schools.”7 The court also found that funds following the student would not work for funding purposes because funds based on per capita student attendance “does not mean that common school funds are available for students who do not attend common schools.

Where a child is not attending a common school, there can be no entitlement to ‘an apportionment of the current state school fund, to a credit predicated on attendance of children at such...school.’”8 As a result, charter schools in Washington must close.

While the Tennessee and Washington constitutions are not identical, this case’s holding should make Tennesseans question whether charter schools in Tennessee will receive a similar fate.

III. Charter Schools in Tennessee

This past September, Washington’s Supreme Court held that the charter school legislation was unconstitutional and violated the Washington Constitution because “charter schools are not common schools despite the Act's attempt to so designate them. The Act's designated funding mechanisms fail and these provisions are not severable from the remainder of the Charter School Act.”4 The court reasoned that the Constitution required the Washington legislature to dedicate funds to “common schools” and that this fund was solely for common schools.5

The Tennessee Supreme Court has not addressed whether the charter school legislation is constitutional. However, former Attorney General, Robert E. Cooper, Jr. has addressed the issue of whether the Charter Schools Act imposes “financial burdens on local school districts in violation of Article II, Section 24 of the Tennessee Constitution” and found that Tennessee’s Charter Schools Act does not produce an unconstitutional financial burden on local school districts.9 This opinion, however, still does not address whether charter school legislation is constitutional under other clauses of the Tennessee Constitution.

This case depended on Article IX, Section 2 of Washington’s Constitution and prior case law defining common schools. In Washington, charters schools had to report students’ enrollment and comply with reporting requirements to receive funding.6 The charter school legislation directed the superintendent to allocate funding for charters

Tennessee’s charter school legislation is similar to Washington’s.10 In Tennessee, charter schools are public schools.11 They are private entities that contract with a school board.12 A charter sponsor can be “any individual, group, or other organization filing an application in support of the establishment of a public charter school.”13 Three

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Nashville Bar Journal • March 2016

types of entities may authorize a charter school: (1) the Local Board of Education; (2) the Achievement School District;14 or (3) the Tennessee Board of Education.15 A Tennessee charter school must be a nonprofit entity16 and though Tennessee law does not currently allow for-profit entities to operate a charter school, it does allow a charter school to “contract for services.”17 This “contract for services” is limited and charter schools in Tennessee cannot give up the actual management or operation of the charter school.18 The purpose of the charter school legislation is to provide “alternative means” to ensure that students accomplish the “necessary outcomes of education” within a school district structure yet are given maximum flexibility to achieve their goals.19 Three core principles of charter schools are (1) choice and parental freedom, (2) localized control of operations, and (3) competition.20 With those principles in mind, charters operate and manage their own school.21 Charters have the freedom create their own goals, purposes, and curriculum.22 For example, Nashville Academy of Computer Science focuses on computer programming and coding curriculum, yet Valor Collegiate Academics focuses on students’ social-emotional skills, character strengths, and physical health.23 This type differs greatly from a traditional public school, which has goals, purposes, and curriculum set for all the schools by the local school board.

The management and operation of charter schools also differ greatly from traditional public school;24 rather than a local school board overseeing the operation and management of a charter, the charter’s governing body manages and operates its school.25 This governing body consists of a group of people who will make decisions on matters such as curriculum, operating procedures, and budgeting.26 Charter schools’ management style has mirrored the United States’ private sector with increased administrative spending.27 IV. Funding Like in Washington, funding follows the

student. In other words, wherever the student goes to school, the funds go to that particular school.32 In Tennessee, a LEA receives Basic Education Program (BEP) funding each year.33 The BEP amount the LEA receives is based on the LEA’s student enrollment for the prior year.34 The BEP is a formula, which the Tennessee Board of Education devised to allocate funds to school districts.35 Charters can also apply for other grants and seek donations to supplement BEP funding.36 Charter schools have tremendous freedom to allocate resources because of this funding structure. However, this is also a limit for charter schools. For example, some studies show that charter schools receive less per pupil funding than traditional schools.37 Researchers claim that one of the reasons for this is the higher operational expenses and the limited budgets of charter schools.38 This theory is supported by pointing to the charter school staff, which can include lessexperienced teachers and fewer teachers with graduate degrees.39 In Effective Uses of CSP Grant Funds in Tennessee Charter Schools, Lipscomb University doctorate students conducted a study of six charter schools in Tennessee,40 focusing on the effective use of federal grant money given to charter schools in Tennessee. The researchers surveyed schools serving grades 5th through 8th during the 2012–2013 school year in either the Memphis or Nashville areas that operated under one of the two LEAs in Memphis and Nashville.41 Of the six charter schools surveyed, the success rate varied; some charter schools were successful, yet some demonstrated low-performing results and one charter was scheduled to close at the end of the grant.42 The areas of spending in the survey were divided into four parts: facilities, supplies, instruction, and technology.43 The survey resulted in the following findings: [T]here is a connection between spending of [United States Department of Education Charter Schools Program] CSP funds on instruction in year one of the CSP grant and student achievement in year one and in overall achievement over the three-year life

of the grant, but not in the overall spending in all three years of the CSP grant. The two highest performing schools, KIPP Memphis and KIPP Nashville, both allocated 49% of their CSP funding in the category of instruction in year one, though they were not able to sustain that level of spending over the course of the three years. It is unclear in the data collected as to what caused the drop in instructional spending... Though the charters studied didn’t reach the 50% threshold for CSP funding toward instruction as established by the hypotheses, it was clear that instructional spending of CSP grant funds in year one was connected to student achievement. In addition, it was clear by the findings that high spending of CSP grant funds in the area of supplies in year one and in over the three-year life of the CSP grant had a statistically significant negative impact on student performance as established by the data and modeled by Smithson Craighead, a school on the brink of closure.44 This study demonstrates the inconsistencies in charter school management, operation, funding, and student achievement. By the end of the study, one charter was “on the brink of closure” while other charters were somewhat successful. This creates a situation where the Tennessee Constitution may come into play as to the quality and equality of education for students in Tennessee. This study also brings the Washington holding to mind and leads one to question the longevity of privatized public schools.

V. Tennessee Law Tennessee school children have a right to an education.45 This right guarantees equal privileges and immunities under Article 1, Section 8 and Article XI, Section 8 of the Tennessee Constitution.46 The Tennessee Supreme Court has been clear that the Tennessee Constitution does not allow indifference or inability of state agencies to defeat the constitutional mandate of equal opportunities for students.47 Thus, the equal protection clause guarantees equal educational opportunities to Tennessee students.48 In Tennessee Small School Systems v. McWherter, the Supreme Court held that the State’s education finance system violated the Nashville Bar Journal • March 2016

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Tennessee Constitution’s equal protection clause.49 The Court noted that the essential issues in the case were quality and equality of education, not equality of funding.50 The findings of fact by the trial court showed that certain districts offered far less than students who attended schools in wealthier districts: . . . students in plaintiffs' schools are not afforded substantially equal access to adequate laboratory facilities, computers, current and new textbooks, adequate buildings, advance placement courses, varied curricula, advanced foreign language courses, music and art courses, drama and television courses.

Plaintiffs' districts also fail in their efforts to retain teachers, fund needed administrators, and provide sufficient physical education and other programs. The wealthier districts offer a wide variety of advanced placement courses; a broad curriculum with advanced science and math courses; adequate labs in both junior high and high schools; a choice of foreign languages; multiple computer courses; art, music, and drama courses; sufficient and current textbooks; and adequately supplied libraries. The schools are newer, cleaner, and safer. They provide an environment conducive to learning. The evidence indicates a direct correlation between dollars expended and the quality of education a student receives.51 Because of the right to an education, there could be a constitutional claim that the charter school legislation violates students’ rights under the equal protection clause and the education clause of the Tennessee Constitution. State action is shown by the charter school legislation, which arguably creates inequality and unequal opportunities for Tennessee students. Unequal opportunities could be shown by charters lack of affording substantial opportunities to students, such as retaining quality instructors and administrators and providing adequate computers, laboratory facilities, buildings, advance placement courses, well-rounded curricula, and foreign language courses.

The Tennessee Supreme Court found that the school funding legislation violated the equal protection clause of the Tennessee Constitution—will they also find that the 8

Nashville Bar Journal • March 2016

charter school legislation violates the equal protection and education clause of the Tennessee Constitution?

VI. Conclusion To date, this issue remains unresolved. In the meantime, it is safe to assume that charters will continue to multiply in Tennessee, even when local school boards reject the charters’ applications. n Caroline Sapp Hudson is an associate at the Law Offices of John Day, P.C. She assists clients in various tort-related litigation matters. Her professional organizations include Lawyers’ Association for Women, Marion Griffin Chapter where she co-chairs the Judicial Appointments, Elections & Award Nominations Committee and the Nashville Bar Association where she serves on the Nashville Bar Journal Committee.

Endnotes Tenn. Code Ann. § 49-13-108(4)(A); see also Jason Gonzales, KIPP Nashville Wins Appeal, THE TENNESSEAN, Oct. 23, 2015, available at Tennessean.com/Story/News/ Education/2015/10/23/State-Board-Overturns-NashvilleCharter-Decision/74451282 [hereinafter “KIPP Nashville Wins Appeal”]. For the application process, see Tenn.

Code Ann. § 49-13-107.

1

2

Tenn. Code Ann. § 49-13-108(a)(4)(A).

3

KIPP Nashville Wins Appeal, supra note 1.

League of Women Voters of Washington et al. v. Washington et al., 84 Wash.2d 393, 413 (Wash. 2015).

4

WASH. CONST. art. IX, §§ 2, 3. League of Women Voters of Washington, 84 Wash.2d at 417-18.

5

6

Id.

7 Id.; see also Laws of 2013, ch. 2, § 222(2); RCW 28A.710.220(2); RCW 28A.710.020(3).

8 League of Women Voters of Washington, 84 Wash.2d at 410; State v. Preston, 79 Wash. 286, 289, 140 P. 350 (1914).

9 Public Charter Schools Act and Article II, Section 24 of the Tennessee Constitution, Tenn. Op. Att'y Gen. No. 13-72 (Sept. 9, 2013).

See Laws of 2013, ch. 2, § 222(2); RCW 28A. 710.220(2); RCW 28A.710.020(3). See also RCW 28A.710 et seq. compare with Tenn. Code Ann. § 4913-101 et seq.

10

11

Tenn. Code Ann. § 49-13-104(5).

12

Id. § 49-13-105(a); 49-13-110.

13

Id. § 49-13-104(7).

The Achievement School District was created to bring the bottom 5% of schools in Tennessee to the top 25%.

See Achievement School District, Building the Possible, AchievementSchoolDistrict.org/About.

14

15

Id. § 49-13-104 (7); Id. § 49-13-106(b)(1)(B).

16

Id. § 49-13-106(b)(1)(B).

Id. See also Tenn. Dept. of Educ., Charter School FAQ, available at TN.Gov/Education/Article/Charter-SchoolFAQ [hereinafter “Charter School FAQ”].

17

18

Charter School FAQ, supra note 17.

Tenn. Code Ann. § 49-13-102. See also Charter School FAQ, supra note 17.

19

20 JOSEPH MURPHY & CATHERINE DUFFY SHIFFMAN, UNDERSTANDING AND ASSESSING THE CHARTER SCHOOL MOVEMENT 5 (2002). See also Leigh Webb & Andrew Williams, Effective Uses of CSP Grant Funds in Tennessee Charter Schools, TN.Gov/Assets/ Entities/Education/Attachments/Chtr_Sch_Best_Practices_Lipscomb.pdf [hereinafter “CSP Grant Funds”].

21

Charter School FAQ, supra note 17.

22

Id.

23 See Nashville Academy of Computer Science, available at NashCompSci.org/#About-Nacs, compare with ValorCollegiate.org/Why-Were-Unique.

24

Tenn. Code Ann. § 49-2-203.

25

Id. § 49-13-104(7).

26

Tenn. Code Ann. § 49-13-104 (7).

27

CSP Grant Funds, supra note 20, at 41.

28

Tenn. Code Ann. § 49-13-113.

29

Id. § 49-13-113.

30

Id. § 49-13-113.

LEAs are required to "allocate to the charter school an amount equal to the per student state and local funds received by the LEA and all appropriate allocations under federal law or regulation, including, but not limited to, Title I and ESEA funds." Tenn. Code Ann. § 49-13112(a). “The money does follow the students, to the entity responsible for educating those students. In the case of students attending non-chartered public schools, the LEA (or central office) decides how to spend most of those funds. For public charter schools, however, the money flows all the way to the school the students attend.

The principal of a public charter school and the school’s governing body decide how to allocate funds for personnel, facilities, curriculum, supplies and other operating costs.”

See Charter School FAQ, supra note 17.

31

Tenn. Code Ann. § 49-3-354; see also Distribution of Basic Education Program Funds to Charter Schools, Tenn.

Op. Att'y Gen. No. 13-34 (Apr. 24, 2013).

32

Continued on page 15

Capitol Notes

By Nathan H. Ridley Make friends before you need them.

—Lyndon Baines Johnson, 36th President of the United States.

Justice Roger Page

Checklist for March

The House Ad Hoc Committee on Judicial Confirmation and the Senate Judiciary Committee both conducted confirmation hearings for Court of Criminal Appeals Judge Roger Page (60) of Madison County for a position on the Tennessee Supreme Court. After a warm introduction by our State Attorney General Herbert Slatery and the Governor’s Legal Counsel, Dwight Tarwater, Judge Page gracefully fielded questions from the committee members. With Judge Page’s family seated in the audience, both committees voted to confirm him without a dissenting vote. The two houses met in joint convention on February 22 to confirm Judge Page as the next member of our Supreme Court. Page took office upon confirmation and will stand for a retention election in August 2016 for the remainder of Justice Wade’s eight-year term until August 2022. This will be our state’s first experience with the legislative confirmation process for appellate court judges after the adoption of the constitutional amendment in November 2014. For the Nashville connection, Page’s bride is Davidson County Chancellor Carol McCoy. During the course of committee questioning, Page noted that Chancellor McCoy is planning on retiring on August 31, 2016.

1. Call your elected state legislative officials and thank them for their service during the 2016 session.

Odd, but helpful to some of our larger corporate citizens Tennessee is a low tax, low service state. Tennessee does not have a broad based personal income tax, and most of our state revenues come from the sales tax or franchise and excise tax on businesses.

Many bills fail in the finance committees after clearing the appropriate standing committee which approved the bill in concept. The cause of the failure is the lack of a funding mechanism. The Haslam Administration has proposed a bill which reduces the harshness of the present law’s requirement of four equal franchise and excise tax payments and a reduction of the monthly deficiency or delinquency penalty from 5% to 2%. Passage is expected. The estimated one time cost of this Administration initiative is $11.8 million, which is funded in the Administration’s proposed budget. Talk about the importance of making friends.

2. Plan on attending this year’s Law Day Luncheon on Friday, April 29. Nashville Police Chief and attorney Steve Anderson is the speaker. Invite a lawyer who is not an NBA member to attend with you.

3. Note that Tennessee Code Annotated § 20-7-106, grants any member of the General Assembly a continuance in any judicial or administrative matter in which that member is an attorney, party, or witness.

Calendar Notes State offices will be closed on Friday, March 25 for the Good Friday holidway. April 7 is the qualifying deadline for candidates to run for the General Assembly in the 2016 elections. All 99 state house districts, including 10 here in Davidson County will be up, and the even numbered senate districts, including 2 here in Davidson County, will be up. n

Nathan H. Ridley is an attorney with the Nashville firm of Bradley Arant Boult Cummings LLP. You may contact him by email at nridley@babc.com.

The Possibilities are Unlimited For those of you pondering the expansion of your local marketing efforts, please note HJR 231 which was on the Senate Floor on February 22. HJR 231would designate the Barrett Model M82/M107 as the official rifle of the State of Tennessee. While Tennessee has a host of state symbols such as the tulip poplar as our state tree and the mockingbird as our state bird, this will be the state’s first brand name official symbol.

Nashville Bar Journal • March 2016

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FEATURE

In Defense of Net Neutrality

By Wade Sims

In the January 2016 issue of the Nashville Bar Journal, David Winters wrote “Nits and Nats of Network Neutrality,” an article introducing to attorneys the concept of Net Neutrality as an Internet where all transmissions are treated equally.1 Winters criticized the concept as an “imagined social justice construct,” comparing it to overcrowded grocery store lines and concluding that Net Neutrality is “precisely the opposite of what the Internet was created to be.”2 If you missed his thoughtful and provocative article, I highly recommend you go online to the NBA website and read it now.

I would like to offer an alternative perspective on Net Neutrality, one which explains not only its benefits but also why it is necessary today.

Net Neutrality is the principle that Internet service providers (ISPs) and governments should not discriminate against certain types of data based on content, type, or source. The term was coined in 2003 by Tim Wu, an attorney and former media law professor at Columbia University.3 Wu, as well as other media and technology experts, were concerned that private ISPs have too much power and incentive as regional monopolies and will discriminate against customer content that did not promote their own interests. Wu proposed that public information networks like the Internet would be better off if all content, sites, and platforms were treated equally.4 The purpose of Net Neutrality is simple: keep Internet users in control of what content they view and what applications they use on the Internet. In a free market, Net Neutrality would be standard; customers would be free to choose the ISP that gives them the experience they desire. However, customers don’t have a choice when it comes to Internet service. ISPs are natural monopolies; only 2.4% of U.S. 10

Nashville Bar Journal • March 2016

citizens have access to three or more broadband service providers.5 The remaining 97.6% get to choose between two providers, one provider, or no provider at all.6 Like many investor-owned utilities, Internet service providers contract with local governments to provide Internet infrastructure to neighborhoods and offices. Usually these contracts are geographically exclusive so municipalities don’t have to run multiple Internet lines across the city for every ISP. While convenient for infrastructure, this government-regulated regional exclusivity makes ISPs natural monopolies with unilateral control over Internet access.

Without Net Neutrality, ISPs would be free to control what content, websites, and platforms customers access. Unilateral control and lack of competition make it easy for ISPs to discourage or block content with which they disagree. For example, Comcast could block access to Netflix because Netflix’s service competes with Comcast’s own Xfinity streaming video application. Time Warner could charge you a premium for the privilege of accessing Facebook. Verizon would be free to accept payments from Google in exchange for blocking customers from Apple’s App Store. AT&T could even disconnect supporters of political causes it finds unsavory.

This isn’t a theoretical parade of "horribles". ISPs have been discriminating against users in this fashion for many years. In 2005, North Carolina ISP Madison River Communications was sanctioned by the FCC for blocking Voice-over-Internet-Protocol (VoIP) phone services like Vonage that competed with Madison’s own telephone service.7 In 2007, Comcast was exposed for secretly throttling the Internet speeds of customers using file sharing programs.8 In 2010 and 2011, several

ISPs hijacked users’ Google searches and substituted their own search results in exchange for referral fees.9 In 2012, Verizon blocked users from downloading free tethering applications—in violation of a Net Neutrality pledge it made to the FCC in exchange for cell phone spectrum—forcing users to use Verizon’s $20 per month tethering service.10 Years earlier, Verizon blocked a pro-choice advocacy group from conducting a text-message based fundraising campaign, claiming it had the right to block “controversial or unsavory” text messages.11 The Federal Communications Commission (FCC) has consistently held that these types of actions violate Net Neutrality rules, but a recent case before the U.S. Court of Appeals for the Federal Circuit overruled the FCC’s original Net Neutrality mandate.12 The court ruled that FCC lacked authority to impose Net Neutrality rules over the Internet because it was a Title I service under the Telecommunications Act of 1934 and, therefore, subject to less regulation.13 To enact Net Neutrality, the FCC must classify the Internet as a telecommunications service under Title II, thereby giving the FCC permission to enforce “common carrier” rules like those used to regulate phone companies. In response to the ruling and overwhelming public demand, the FCC classified the Internet under Title II and imposed light Net Neutrality regulations designed to prevent ISPs from unfairly discriminating against traffic for its own benefit.14 Although terms like “Title II” and “common carrier” may not be part of most lawyers’ daily vocabulary, Net Neutrality principles are actually familiar, especially in the context of utilities. Utilities provide their services neutrally.

The power company does not provide the electricity you use to power your computer on different terms than the electricity you use to run your toaster. It cannot turn off or limit power to your GE appliances because GE didn’t pay the company a special connection

fee. Why should ISPs be held to a different standard? Internet data, like phone data, is electricity—just on a different wire.

Opponents of Net Neutrality often argue the Internet works like a grocery store. Data lines up in queues and waits to be checked out and Net Neutrality works like a general store where there’s only one line and everyone is served on a first-come, first-served basis whereas “Net Discrimination” (for lack of an official term) works like a grocery store with special purpose express lanes.

But the Internet is more like Amazon.com than a grocery store. Anything you could ever want is available, you can access whatever you like at any time of day, and you can get things on demand without waiting in line.

So if the Internet were like an Amazon-style grocery store, it would have to be a very big grocery store with an array of cashiers available to check out customers whenever they like. This is called “bandwidth capacity”—the ability to handle lots of customers (or data) simultaneously.

Utilities provide the same on-demand access.

You don’t have to wait until your neighbor finishes watering the lawn before you can take

a shower. The power company can’t turn off your TV because the hospital needs to run an MRI. Utilities must provide enough capacity to handle normal, everyday demand, because consumers usually can’t get power or water from another provider unless they move.

ISPs don’t want to work like utilities or like Amazon. They want their network capacity to run out, forcing customers to wait in line, because upgrading bandwidth capacity is expensive and inconvenient to ISPs. When ISPs force customers to wait in line, they can prioritize customers that are most profitable. In other words, ISPs would take their cashiers off the “slow lane” registers and staff the “fast lane” registers that benefit them—fast lanes like “15 items or less,” “store brand only, “premium access members,” and “political campaign contributors only.” If real grocery stores did this, they’d likely lose customers who would leave for other stores. Because ISPs are regional monopolies, however, customers have no choice and are forced to abide by the whims of their ISPs. Net Neutrality takes the gatekeeping role away from ISPs and ensures that they operate fairly, like utilities. Under the FCC open Internet rules, e-mails must go through as fast as videos, no matter their content or recipient. Nothing gets slowed down or waits in a line, because every line becomes a “fast lane.” Net Neutrality rules ensure that ISPs stay competitive, keeping the customer in control of the content they view and applications they use.

Critics claim that Net Neutrality is unnecessary and harmful government intervention, another example of federal intrusion into the business world. But Net Neutrality is no more anti-free-market than antitrust laws or utility regulations. Where natural monopolies exist, often due to government intervention, light regulation helps the market stay competitive and consumer-oriented.

Continued on page 17 Nashville Bar Journal • March 2016

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BI L L GA & PHI DG ET O L'S F THE

MONTH

The Smart Home Evolution

By Bill Ramsey, Neal & Harwell, PLC & Phillip Hampton, LogicForce Consulting We've tried smart phones, smart watches, smart shoes, even smart socks; so we thought it was time to bring this smartness home, literally. From the plethora of connected devices now appearing on retail store shelves, it is quite apparent that the era of the "smart home" has arrived. The choices are myriad and a little overwhelming, so our advice is to do like we did and take one step at a time.

In other words, we decided to take an evolutionary approach and make our homes smart by introducing new devices and teaching new tricks a little bit at a time. We call this the "smart home evolution"; and it is in full swing with many new and exciting things coming down the pike.

The first thing we have noticed about the evolving smart home market is that there are a lot of players with competing products as we witnessed at this year's Consumer Electronics Show. Iris, Wink, Insteon, WeMo, and Philips are just a few of the major players in this market and all have similar product offerings. There is no law that says you have to use devices from only one brand; however, product integration—smart lights, for example—can be easier when they are all of the same brand controlled through a central hub. Probably the most common smart device that many consumers have already been using quite a bit is the smart thermostat, which provides a touch screen interface, Wi-Fi connectivity, programmable controls, and "learning" capability. The popular Nest thermostat—now owned by Google—has been around for a few years and is very easy to install and operate. The Honeywell Wi-Fi Smart Thermostat is another popular option that we have been using. It has many cool features, but to be honest, the only "smart" feature that we use quite a bit is the ability to adjust the temperature setting remotely via smartphone app. We most certainly will get around to "training" the thermostat to predict our daily temperature preferences; but alas, we are too busy programming all of our other home gadgets.

Probably the simplest way to ease into the smart home "ecosystem" (we hate that word, but all the tech gurus seem to really like it, so we want to play the part) is to purchase a smart switch. This is simply a Wi-Fi-enabled outlet extension that plugs into an existing electrical outlet. We opted for the Belkin WeMo Switch because

it was available on the Best Buy shelf and not terribly expensive at $39.99. So with this switch, you can make any device "smart" by plugging it into the WeMo switch. We plugged the WeMo switch into the wall outlet and then plugged a regular "dumb" lamp into the WeMo switch. We then downloaded the WeMo app which promptly found our new switch and allowed us to name it whatever we wanted. We decided on the innovative name "lamp". So now we can turn on the lamp from anywhere in the world by simply bringing up the WeMo app on our phone and flipping it to “on”.

So again the easy way to make a home "smart" is to get a number of these switches and plug regular devices (lamps, coffee makers, crockpots, radios, TVs, etc.) into the smart switches.

Controlling regular home devices via our smart phone app is cool enough, but taking a step up the coolness ramp is when you can control these devices with voice commands. Oh yes! Apple has a HomeKit product that allows compatible devices to be controlled via Siri voice commands. Google also has an app that allows control of smart home devices via voice commands. Our choice for voice control of smart home devices, however, is Amazon's Echo, a gadget that we purchased a few months ago and fell in love with.

It was evident that Amazon had a hit with Echo when many smart home products from different manufacturers were touting Amazon Echo integration at CES. Our Belkin WeMo switch that we deployed first, for instance, is compatible with Echo. So instead of turning the lamp on or off via the smart phone app, we can simply say "Alexa, turn on the lamp"; and like magic, the lamp flips on.

Now this is home automation that we can get excited about. It is our view that the Amazon Echo is going to be an integral piece in the smart home ecosystem (there's that word again, impressed?) going forward.

Now that we have the basics down, it is time to continue the evolution of our homes into smart havens of cool technology. The question is, what do we deploy next? We could go with the smart doorbell: Ring is a popular option here which provides a video alert on your phone when someone rings the doorbell. We could start replacing regular light bulbs in our house with smart LED bulbs which allows us to control individual bulbs via app as well Continued on page 13

12

Nashville Bar Journal • March 2016

EARN YOUR CLE WITH QUALITY NBA DISTANCE LEARNING SEMINARS NBA TELEPHONE SEMINARS NATIONAL FACULTY & CURRENT TOPICS AT OUR FINGERTIPS Noon – 1:00pm (Central Standard Time) DISTANCE LEARNING CREDIT

TABLE OF CONTENTS PAGE 2

LIVE CLE SEMINARS PAGE 3

LIVE CLE SEMINARS MARCH Mar 11

Ethics in Claims and Settlements (Dual)

Mar 15

Estate and Trust Planning for Short Life Expectancies

Mar 16

Planning to Obtain Tax Free Treatment in Business Combinations

Mar 17

Easements in Real Estate Live Replay

Mar 18

Ethics and Keeping your Paralegal and Yourself Out of Trouble (Dual)

Mar 22

Modifying Fiduciary Duties in LLCs

Mar 23

Avoiding Family Feuds in Trusts

Mar 24

Construction Agreements, Part 1 (Live Replay)

Mar 25

Construction Agreements, Part 2 (Live Replay)

Mar 28

Outsourcing Agreements (Live Replay)

Mar 29

Drafting Demand Letters

Mar 30

Tax Planning for Real Estate, Part 1 (Live Replay)

Mar 31

Tax Planning for Real Estate, Part 2 (Live Replay)

PAGE 4

CLE EASY PASS REGISTRATION PAGE 5

PLI LIVE WEBINARS & ONLINE COURSES PAGE 6

LIVE WEBINARS PAGE 7

MOVIE WEBCASTS PAGE 8

CLE REGISTRATION FORM

APRIL Apr 1

Drafting Trusts for Long-Term

Apr 5

Planning Due Diligence in Business Transactions

Apr 6

Insurance and Indemnity in Real Estate (Live Replay)

Apr 7

Treatment of Trusts in Divorce

Apr 8

UCC 2A: Drafting Sales of Goods Contracts

Apr 12

Escrow Agreements in Business Transactions

Apr 13

Restrictive & Protective Covenants in Real Estate

Apr 14

Governance for Non-profits

Apr 15

Estate Planning for Guardianship and Conservatorships (Live Replay)

Apr 18

Estate & Trust Planning for Non-Traditional Families (Live Replay)

Apr 19

Director and Officer Fiduciary Duties & Liability

Apr 20

Drafting Employment Agreements, Part 1 (Live Replay)

Apr 21

Drafting Employment Agreements, Part 2 (Live Replay)

Apr 22

Ethics for Estate Planners (Dual)

Apr 25

Choice of Law and Choice of Forum in Contracts (Live Replay)

Apr 26

Employees, Secrets and Competition: Non-Competes and More

Apr 27

Planning with Single Member LLCs, Part 1 (Live Replay)

Apr 28

Planning with Single Member LLCs, Part 2 (Live Replay)

Apr 29

Ethical Issues in Buying, Selling or Transferring a Law Practice (Live Replay)(Dual)

SUPPORT YOUR LOCAL BAR ASSOCIATION! NBA CLE STAFF Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator

SEE ADDITIONAL COURSES AT NASHVILLEBAR.ORG/CLE Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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MARCH 8, 2016

THOUGHTFUL EVALUATION AND SELECTION OF CONTINGENT FEE CLIENTS WHO SHOULD ATTEND: Any lawyer who is asked to accept litigation work where pay services is contingent on the outcome of the case will benefit from this seminar.

OVERVIEW: Deliberate, structured cases analysis must be taken before accepting cases on a contingent fee. The failure to do so threatens financial security, increases stress, and results in poor outcomes—all of which impacts your future. Attend this seminar and learn key elements that should be part of your analysis.

YOU WILL BENEFIT BY LEARNING HOW TO: • The case acceptance analysis undertaken by a lawyer with over 30 years of work on contingent fee cases.

• The factors that impact case selection in every type of case.

• Warning flags that impact case analysis.

• How to analyze the economic cost of providing legal services.

FACULTY:

John A. Day, NBTA Certified, Civil Trial/ABPLA Certified Medical Malpractice Law Offices of John Day, P.C.

PRODUCER:

Karl Warden, JD, LLM

REGISTRATION 11:30am SEMINAR 12:00pm – 1:00pm 1.0 CLE Hour – General COST NBA Members: $55 Non-NBA Members: $99 JOIN THE NBA AND SAVE $$$ $299 (Fee includes 2016 NBA membership

year and seminar at NBA Member rate.)

LOCATION Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219 PARKING • 4th Ave next to One Nashville Place • 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before Mar 4 to guarantee written materials at the program. Refund or credit will not be issued after Mar 4; however, a substitute may attend for a registered participant.

VISIT NASHVILLEBAR.ORG/CLE FOR MORE INFORMATION!

MARCH 31, 2016

BUSINESS CONSIDERATIONS AND STRATEGIES FOR PROTECTING BREWERIES AND ALCOHOL-RELATED BRANDS WHO SHOULD ATTEND: Attorneys who represent alcohol-related businesses such as breweries, distilleries, restaurants, or distributors; attorneys who advise businesses generally regarding branding; and anyone just curious about how alcohol brands work under state and local law will benefit from this seminar.

OVERVIEW: As the craft brew scene has become more crowded and competitive, breweries are facing new challenges. Not only must breweries be aware of particular business considerations unique to their endeavors, but now they must also deal with increasing brand disputes. Breweries that fail to protect their brands early are finding themselves on the receiving end of lawsuits alleging trademark infringement. Those breweries must make an expensive choice: rebrand and risk losing market share or hire a lawyer and fight back.

YOU WILL BENEFIT BY LEARNING HOW TO: • Business law considerations for new breweries.

• An overview of some of the new laws that will affect breweries in Tennessee.

• Common and uncommon intellectual property protection options for brewers, vint ners, and distillers.

• Key cost-benefit points about brand protection to discuss with clients.

• Various pitfalls of state and federal labeling laws and trademark laws as they apply to branding alcohol.

FACULTY & Curtis Harrington, Farmer Purcell White & Lassiter, PLLC PRODUCERS: Ryan Levy & Gary Montle, Patterson Intellectual Property Law, P.C.

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REGISTRATION 2:30pm SEMINAR 3:00pm – 4:30pm 1.5 CLE Hours – General RECEPTION WITH BEVERAGES! 4:30pm – 5:00pm COST NBA Members: $65 (received before or on Mar 29); $75 (received after Mar 29) Non-NBA Members: $129 (received before or on Mar 29); $139 (received after Mar 29) JOIN THE NBA AND SAVE $$$ $309 (received before or on Mar 29) $319 (received after Mar 29)

(Fee includes 2016 NBA membership year and seminar at NBA Member rate.)

LOCATION Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219 PARKING • 4th Ave next to One Nashville Place • 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before Mar 29 to guarantee written materials at the program. Refund or credit will not be issued after Mar 29; however, a substitute may attend for a registered participant.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

APRIL 12, 2016 REGISTRATION 1:00pm SEMINAR 1:30pm – 4:50pm 3.0 CLE Hours – 2.5 General | .5 Dual COST NBA Members: $139 (received before or on Apr 8); $149 (received after Apr 8) Non-NBA Members: $279 (received before or on Apr 8); $289 (received after Apr 8)

SUCCESSION PLANNING FOR LAWYERS

TRANSITIONING, SELLING, OR CLOSING YOUR LAW PRACTICE

WHO SHOULD ATTEND: All lawyers—even in firm settings—need to plan for retirement, illness/disability, or death, and its effect on their practice and clients.

JOIN THE NBA AND SAVE $$$ $385 (received before or on Apr 8) $395 (received after Apr 8)

OVERVIEW: All lawyers face the reality of eventual retirement, illness/disability, or death.

There are many critical elements to consider including firm strategic planning and revenues, file retention, transitioning staff and files, and more. In all cases, the clients’ interests must be protected, creating an ethical obligation for you to plan.

LOCATION Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219

Learn how to plan now—before a crisis. Find out the choices that you can make to minimize tax impacts and properly value the transition, the basics of practice organization, succession planning, the sale of a practice, and current ethics rules governing a lawyers’ transition out of practice.

(Fee includes 2016 NBA membership year and seminar at NBA Member rate.)

PARKING • 4th Ave next to One Nashville Place • 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before Apr 8 to guarantee written materials at the program. Refund or credit will not be issued after Apr 8; however, a substitute may attend for a registered participant.

FACULTY:

Marisa Combs, Lewis Thomason J. Dale Crow, Crow Friedman Group, a Risk Strategies Company Wes Pennington, III, Frazier & Deeter, LLC Sasan Zamani, Frazier & Deeter, LLC

PRODUCER:

Susan Blair, Nashville Bar Association

VISIT NASHVILLEBAR.ORG/CLE FOR MORE INFORMATION!

APRIL 21, 2016 REGISTRATION 1:00pm SEMINAR 1:30pm – 4:55pm 3.0 CLE Hours – General COST NBA Members: $139 (received before or on Apr 19); $149 (received after Apr 19) Non-NBA Members: $279 (received before or on Apr 19); $289 (received after Apr 19) JOIN THE NBA AND SAVE $$$ $385 (received before or on Apr 19) $395 (received after Apr 19)

(Fee includes 2016 NBA membership year and seminar at NBA Member rate.)

CONCUSSION: HOT TOPIC IN SPORTS LAW WHO SHOULD ATTEND: Attorneys who deal with sports law or have an interest in finding out more about this significant issue will benefit from this program.

OVERVIEW: Concussions and other sports-related injuries have become a major topic of discussion at all levels of competition. Laws, court decisions, and recently adopted league policies have forced those involved in sports competition to pay much closer attention to the possible permanent damage that can result from concussions and other head injuries.

LOCATION

All 50 states have enacted laws to protect junior high and high school athletes. The NCAA has adopted rules governing collegiate sports competition. The NFL and other professional sports leagues have been forced by lawsuits to adopt new rules to protect their players. Hollywood even got into the picture in December with the release of the motion picture Concussion.

PARKING

Attend this seminar and learn about the issues from attorneys and professionals who regularly deal with sports law issues in their jobs and practices.

Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219 • 4th Ave next to One Nashville Place • 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before Apr 19 to guarantee written materials at the program. Refund or credit will not be issued after Apr 19; however, a substitute may attend for a registered participant.

FACULTY:

Matt Banker, Association Athletic Director for Compliance, University of Louisville Richard Colbert, Kay, Griffin, Enkema & Colbert, PLLC Isaac Conner, Stewart Johnson Conner & Manson, LLP Courtney Wilbert, Kay, Griffin, Enkema & Colbert, PLLC

PRODUCERS: John P. Williams, Tune, Entrekin & White, P.C. Sara Reynolds, Anderson & Reynolds, PLC

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

PLI & THE NASHVILLE BAR ASSOCIATION BRING YOU LIVE WEBCASTS The Practicing Law Institute and the Nashville Bar Association are working together to bring PLI’s sophisticated and cutting-edge programs to Tennessee attorneys through live webcasts held in the NBA Conference Center.

Attorneys attending the live webcasts at the NBA office will earn “live” CLE credit!

Visit NashvilleBar.org/CLE for course details and to register. All start times listed below are Central Standard Time.

March 2, 2016

Psychological Issues in Employment Law 2016

12:00 – 4:00pm

March 16, 2016

How to Read Financial Statements 2016

12:15 – 4:00pm

April 20, 2016

Financial Services Conflicts of Interest & Fiduciary Duties 2016

12:00 – 4:00pm

June 2, 2016

Appellate Advocacy 2016

1:00 – 5:00pm

June 30, 2016

Writing for Litigators 2016

1:00 – 4:15pm

Questions? Contact Christine Seisler at PLI at cseisler@pli.edu or 212.824.5798.

MARK YOUR CALENDAR! APRIL 25, 2016 Hot Topic in Bankruptcy Practice 12:00 – 1:00pm 1.0 CLE Hour Produced by Robert Miller Manier & Herod, PC MAY 12, 2016 Health Law Institute 12:00pm – 4:30pm 3.0 CLE Hours Produced by Marc Ison Sherrard & Roe, PLC

NBA ONLINE CLE PERSONALIZED LEARNING ON YOUR SCHEDULE is the exclusive online support network for the NBA

Check back at NashvilleBar.org/CLE for upcoming class offerings and schedules. Course topics will include: Ethics and Professionalism Court Practice and Views from the Bench Mediation Family Law Estate Planning Probate Practice Employment Law Federal Court Practice AND MORE!

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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LIVE CLE ETHICS WEBINARS FEATURING SEAN CARTER, ESQ.

The Nashville Bar Association partners with Sean Carter and MCLE Plus to bring you CLE Netshows—entertaining and contentfilled ethics and professionalism live webinars. Sean and Stuart are not only nationally recognized education experts, but also excellent communicators who actually make learning fun. Both received rave reviews from area lawyers for their in-person NBA CLE seminars.

Watch your inbox for program details and registration links! You can also register at NashvilleBar.org/CLE.

MARCH WEBINAR LINE-UP

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Mar 7

Yelp, I’ve Fallen for Social Media and I Can’t LinkedOut: The Ethical Pitfalls of Social Media Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Mar 14

Lies, Damn Lies & Legal Marketing Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Mar 21

Show Me the Ethics! The Ethical Way to Bill for Legal Services Noon – 1:00 p.m. Central Time 1.0 CLE Hour – Dual – Distance Learning Credit

Mar 28

The Truth, The Whole Truth & Nothing but the Truth: The Ethical Imperative for Honesty in Law Practice

Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

Put some DRAMA into your CLE with these engaging movie webcasts!

ALL WEBCASTS ARE ON MONDAYS OR WEDNESDAYS. REGISTRATION MUST OCCUR AT LEAST ONE HOUR PRIOR TO THE PROGRAM. Distance Learning Credit

The Art of Advocacy

What Can Lawyers Learn from Actors?

PRODUCER:

Ben Franklin on Ethics

Facilitated by Katherine James

Featuring Christopher Lowell

June 1 11:00am – 2:30pm CST 3.25 CLE Hours

March 16 • April 27 • June 15 11:00am – 12:00pm CST 1.0 CLE Hour

General - Distance Learning

Clarence Darrow:

Crimes, Causes, and the Courtroom

Dual - Distance Learning

Impeach Justice Douglas!

Featuring Graham Thatcher as Clarence

Featuring Graham Thatcher

March 30 • May 11 • June 29 11:00am – 2:15pm CST 3.0 CLE Hours

June 8 11:00am – 2:15pm CST 3.0 CLE Hours

Dual - Distance Learning

Lincoln on Professionalism

Dual - Distance Learning

Thurgood Marshall’s Coming Featuring T. Mychael Rambo

March 16 • April 27 • June 15 12:15pm – 1:30pm CST 1.25 CLE Hours Dual - Distance Learning

Make Your Witness a STAR!

May 25 11:00am – 1:40pm CST 2.5 CLE Hours Dual - Distance Learning

Maxims, Monarchy and Sir Thomas More

Facilitated by Katherine James

Featuring Graham Thatcher

April 13 11:00am – 1:30pm CST 2.25 CLE Hours

June 22 11:00am – 12:15pm CST 1.25 CLE Hours

General - Distance Learning

Dual - Distance Learning

For movie webcast details and to register, go to Periaktos.Bizvision.com.

Brought to you by the Nashville Bar Association CLE and Periaktos Productions, LLC. . . . The dramatic difference in CLE.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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APR 8

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Apr 12

APR 21

(NBA use only)

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Concussion: Hot Topic in Sports Law

Succession Planning for Lawyers Transitioning, Selling, or Closing Your Law Practice

Breweries and Alcohol-Related Brands

MAR 29 Business Considerations and Strategies for Protecting

2

MAR 31

Thoughtful Evaluation and Selection of Contingent Fee Clients

MAR 4

2

CLE REGISTER PG# BY SEMINAR TITLE

MAR 8

DATE

NB B Continuing Legal Education REGISTRATION FORM

BI L L GA & PHI DG ET O L'S F THE

MONTH

Continued from page 12

as change the color of the light emitting from the bulb. We could feed our morning passion for coffee with a smart coffee maker called BrewGenie (it also plays music while it's brewing a fresh pot to wake you up). Maybe we need to invest in a smart vacuum that can be programmed to clean our floors at a certain time every day—or via voice command).

The choices are endless and growing. The key is to take it one step at a time and let your smart home evolve rather than burying you in an avalanche of new technology. To be sure, the choices that are around the corner are even more breathtaking and exciting: smart refrigerators, smart walls, smart toilets….well, we'll just leave it there. Have fun making your home smart.

Until next time, Bill & Phil

MEETING SPACE @ THE NBA CENTER

The NBA Center is available for you to host meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. Wi-Fi is also available.

For more information, contact vicki.shoulders@nashvillebar. org and indicate the date, time, and meeting room preference.

Please note that meeting space is subject to availability.

Nashville Bar Journal • March 2016

13

Basic Tips for the "Curiouser" World of Estate Planning

By Harlan Dodson & Candi Henry

I know who I was when I got up this morning, but I think I must have been changed several times since then. —Lewis Carrol, Alice’s Adventures in Wonderland Be Aware of our New Planning Landscape Having spent our professional lives designing plans to avoid having assets included in a decedent’s estate for estate or inheritance tax purposes, we now find that may no longer be the goal and, indeed, may be counterproductive. In coming to terms with the new planning landscape, practitioners may well feel as if they’ve fallen through Alice’s Looking Glass. With apologies to the Cheshire Cat (and George Harrison), knowing which way to go depends on knowing where you want to get to… .

As of January 1, Tennessee no longer has a gift tax, inheritance tax, or estate tax. Further, we now have a federal estate and gift tax exemption of $5,450,000. Plus, we have “portability” of these exemptions as between spouses, so for most married couples, there is a combined exemption. For many clients today, our best planning opportunity is a mismatch between the income tax and the estate tax provisions.

Although the federal exemptions are now historically large, section 1014 of the Internal Revenue Code still grants a stepped up basis to date of death value for most assets passing through an estate, even though they are not subject to estate tax.

Except where there is still a risk of estate taxation even with the high exemptions, the goal now may be to have the assets included in the estate at death. In this new universe, we can see the IRS agent arguing that an asset is not in the estate, and the Executor insisting that it indeed is in the estate. This means that a good first response is to revise the basic format of the wills or revocable trusts most planners have historically employed, since there are now certain fundamental issues with the traditional documents.

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Nashville Bar Journal • March 2016

Watch out for Problems with Tennessee Marital Gap Trust Provisions Tennessee planners had designed the “Tennessee Marital Gap Trust” as a clever way to deal with the “gap” between the federal estate tax exemption and the Tennessee inheritance tax exemption. This consisted of adding a separate qualified terminable interest marital trust equal to the amount by which the federal exemption exceeded the Tennessee exemption. Obviously, there is no reason to include that language in new wills. However, existing wills do need to be reviewed to determine the effect such gap language would have in view of our changed planning environment, especially where the existing will mandates a series of allocations to fund such a gap trust. While the changes to the federal exemption and portability had been in effect for several years, the fact of the Tennessee gap had delayed updating our forms here. With its passing, now is the time.

Consider for the Possibility of Problems with Bypass Trust Provisions Prior to the recent addition of portability of the federal gift and estate exemptions between spouses, planners had to be certain to use the exemption of the first spouse to die. We did so by including an amount equal to the exemption (but not a penny more!) which would have been taxable, but for the exemption, in the estate of the first spouse to die. When combined with either an outright marital gift or a marital qualified gift in trust, the spouses were thus assured of the full availability of both exemptions and of deferring any estate or inheritance tax until the death of the second spouse. However, when utilizing the full exemption of the first spouse, it was also important to ensure that those assets would not then be again taxable in the second estate, which would only have a single exemption.

The solution which became a common element in everyone’s will forms, often referred to as A and B trusts, was to first assign an

amount of assets, up to the exemption amount, into a testamentary trust which was carefully worded so as not to be includable in the estate of the second spouse to die.

Because the trust sheltered the assets used for the first exemption from the surviving spouse’s estate, and bypassed that estate, they were commonly known as “credit shelter” or “bypass” trusts.

However, if the asset had gone into a bypass trust under Mr. Smith’s will, then it would not have been taxable in Ms. Smith’s estate and the second step up would not have been available. Given the increasing likelihood of longer life for surviving spouses, the appreciation in value over her lifetime may well be significant, and so would the unneeded tax burden.

Problems with Overfunding

Again, what once was good practice would now be actually harmful!

When the exemptions were fairly low, and avoiding inclusion in both estates critical, it made perfect sense to include some provision such as, “the largest amount which will… result in no Federal Estate Tax being payable by my estate,” when defining the funding of the bypass trust. However, inevitably, this mandated that such amount would go into an irrevocable trust, rather than go outright to the survivor or children.

Now, with the higher exemptions, that means that up to the first $5,450,000 in that first estate goes into trust. That is likely to be an unpleasant shock to all concerned.

This means that, for the very typical couple who would simply prefer to leave all to the survivor outright, unless estate taxes required a trust, the bypass trust is now generally an outdated and unnecessary relic which can create significant difficulties in the administration of the estate.

Loss of the Stepped Up Basis As noted above, for most assets passing through an estate, there is a stepped up income tax basis to the date of death values.

(Retirement accounts, installment notes, and certain other assets are exceptions.) That step up is available in each estate through which the asset passes.

For example, Mr. Smith buys an asset for $1,000, which has increased in value to $10,000 at his death and leaves it to Ms. Smith, she can sell it at any time and pay no tax on the proceeds up to $10,000. If it has increased in value to $20,000 at her death and she leaves it to her daughter, then the daughter can sell it at any time and pay no tax on the proceeds up to $20,000.

The world of estate planning keep getting “curiouser and curiouser.” But, a review of forms and goals will help planners avoid going as mad as the Hatter. n

Harlan Dodson is a partner with Dodson Parker Behm & Capparella, PC in Nashville. He has taught wills and estate planning at the Nashville School of Law for over 30 years and is an editor of West Publishing Company’s Tennessee Practice Series volumes on business formation and estate planning. He is also author of the text Introduction to Estate Planning and Administration in Tennessee.

Tennesse's Waltz with Charter Schools Continued from page 8 33

Id. § 49-3-354.

Id. § 49-3-351. The BEP takes into account the Average Daily Membership (ADM) and is calculated on the prior year’s ADM with a few exceptions. This framework also applies to charter schools. LEA’s must pass funding to charter schools, within the LEA, on a per-pupil basis. The funding passed to charter schools is based on the number of students that attend charter schools for the year that the LEA funds are distributed. Id. 34

See CSP Grant Funds, supra note 20. Nonetheless, holistic budgets are not available for Tennessee charter schools. Thus, funding patterns in Tennessee are unknown. “It is known that none of the charters in this Tennessee study were able to evolve to sustaining on BEP funds alone, but the amount of outside funding was not established. Only inferences can be made in the state of Tennessee on how much financial support Tennessee charters are receiving outside of CSP and BEP funding.” Id. at 108.

35

36

CSP Grant Funds, supra note 20, at 37.

37

Id.

38

Id.

39

See CSP Grant Funds, supra note 20.

40

Id.

41

Id. at 68.

42

Id. at 77-79.

43

Id. at 99.

Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 140 -41 (Tenn. 1993). See TENN. CONST. Art. XI, § 12. These sections together guarantee equal privileges and immunities for all those individuals who are similarly situated. See also The Stratton Claimants v. The Morris Claimants, 15 S.W. 87, 92 (1891).

44

Candi Henry is a partner with Dodson Parker Behm & Capparella, PC. She serves as Instructor of Legal Research and Writing at Nashville School of Law and yet still doesn’t have the slightest idea why a raven is like a writing desk.

45

Id. at 151.

46

Id. at 141.

47

Id.

48

Id. at 156.

49

Id.

50

Id. at 144.

Nashville Bar Journal • March 2016

15

NON-PROFIT SPOTLIGHT

Soles 4 Soles

Everyone Deserves a Good Pair of Shoes

By Marjorie Kaup Haines, Esq.

Soles4Souls is a not-for-profit global social enterprise committed to fighting poverty through the collection and distribution of shoes and clothing. Based here in Nashville, Soles4Souls was founded as a disaster relief organization after philanthropists and shoe executives provided footwear to those most impacted by the Indian Ocean tsunami in 2004 and Hurricane Katrina in 2005. Since officially forming as a 501(c)(3) in 2006, the organization has collected and distributed more than 26 million pairs of shoes in 127 countries as well as in all 50 states in the U.S. Why? Shoes keep people healthy, happy, and thriving.

Every day children are prevented from attending school and adults are unable to work because walking becomes unbearable.

A new pair of shoes provides relief today so thousands can succeed tomorrow. In many developing nations, walking is the primary mode of transportation. Every day millions are exposed to unsanitary conditions that lead to diseases such as hookworm, threadworm, and the dreaded Tunga Penetrans, or “jiggers”. These diseases may lead to sickness, even death. They also keep children out of school leaving them without an education and therefore continuing the cycle of poverty.

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Nashville Bar Journal • March 2016

Soles4Souls accepts all types of shoes—athletic, running, dress, sandals, pumps, heels, work boots, cleats, dance, and flip-flops— just as long as they are new or gently worn.

Once donated, shoes go to a facility where they are sorted by style, quality, and season.

Naturally, warm and cold climate shoes are distributed in regions appropriate for that type of footwear.

Soles4Souls takes pride in its ability to collect and distribute shoes “around the corner and around the world” and accomplishes this distribution strategy by networking with established non-profits, churches, civic groups, government agencies, and relief teams.

All shoes are processed and graded by staff in Wadley, Alabama or by Village Northwest Unlimited, a non-profit training facility for people with disabilities located in Sheldon, Iowa. New and high-grade used shoes are immediately earmarked for distribution in the United States or abroad. Lower grade used shoes are sorted and packed for distribution, and some are provided to microenterprise programs in developing countries such as Haiti, Tanzania, and Honduras. The microenterprise participants clean and recondition the shoes to sell locally. Thus, these programs provide both a rare employment opportunity to impoverished people who would like to start their own shoe businesses, but lack the

capital to do so, and an affordable source of shoes for the impoverished local population.

Shoes in very poor condition are unfit for the microenterprise programs and are sent to recyclers in Pakistan who salvage the usable materials from the shoes. Funds raised by Soles4Souls from the microenterprise and recycling programs are used to sustain its programs, such as covering the processing costs incurred at the Wadley and Sheldon facilities and paying for transporting shoes to crisis areas for humanitarian relief. Soles4Souls, Inc. How Can You Help?

Give Money > $1 = 1 Pair. For every $1 you donate to Soles4Souls, one additional pair of shoes is provided to someone in need.

Give Shoes > Host a Shoe Drive. You can join hundreds of people of various ages and walks of life who are collecting shoes in their community. Soles4Souls gives you all the tools you need and make it as easy as possible. Give a few pair. Most of their partner locations will take up to five pairs.

If you have more than five pairs, check out the shipping locations on their website and if a BLUE BIN LOCATION pops up in your area, you can drop off any size of donation to it.

Give Time > Travel. You can travel with the organization and distribute shoes in developing countries. You’ll see, firsthand, the sustainable development achieved through long-term relationships in communities around the world. Your impact will be immediately felt in the smiles and embraces you will receive from those you’ll serve. n

These principles are similar to other common carrier and Title II rules which utilities act competitively and stay consumer-oriented.

319 Martingale Drive • Old Hickory, TN 37138 • 615.391.5723 Soles4Souls.org • Facebook.com/GiveShoes • Twitter: @Soles4Soles

Wade Sims is an attorney at Patterson Intellectual Property Law. His practice focuses on intellectual property litigation, management, and licensing with emphases in Internet law, fair use, data access and privacy, and emergent technologies.

If you feel compelled to educate our legislators about the importance of Net Neutrality, I encourage you to contact them. But before you call or email, remember that the FCC’s latest Net Neutrality rules ensure your message will be received. Without Net Neutrality, your ISP would be free to block your emails and Internet phone calls to your representatives for any purpose at all—such as, say, if you were arguing in favor of Net Neutrality. n

This spotlight on Non-Profit Organizations was submitted by Marjorie Kaup Haines, Esq. 615.818.6988 • margehaines@aol.com Endnotes

In Defense of Net Neutraility Continued from page 11

Under the FCC’s Net Neutrality rules, the impact to ISPs is minimal.

ISPs are still allowed to perform “reasonable network management” so long as that management is “primarily used for and tailored to achieving a legitimate network management—and not commercial—purpose.”15 This allows ISPs autonomy regarding how they manage their networks, so long as that management doesn’t constitute viewpoint discrimination.

Additionally, many of the benefits critics claim Net Neutrality would eliminate are actually the result of Net Neutrality-like government regulation. For example, 911 calls connect on phones even without a paid service provider because of FCC regulations governing emergency network access. Without this regulation, network providers would have no incentive to allow non-paying customers to connect.

Likewise, Net Neutrality ensures that wireless carriers cannot drop 911 calls of regular subscribers in favor of their premium users’ 911 calls.

Technologists sometimes claim that Net Neutrality is against the concept of a free and open Internet and “precisely the opposite of what the Internet was created to be.”16 However, Net Neutrality only affects Internet service, ensuring that people have open access to the free and open Internet. In fact, Sir Tim Berners-Lee, inventor of the World Wide Web that we all think of as the Internet, is an avid supporter of Net Neutrality. Other proponents include Google, Microsoft, Amazon, Kickstarter, Justia, Netflix, Major League Baseball, the Electronic Frontier Foundation, and the ACLU, among many more.

1 David Winters, Nits and Nats of Network Neutrality, 16 NASHVILLE B.J. 6 (Dec. 2015/Jan. 2016), available at Nashvillebar.org/Publications/NBJ/Archives.html.

Editor’s Note: The opening paragraph in this article is an erroneous reprint from a previously published feature.

Winters’s piece commences with the second paragraph on page 6. The NBJ apologizes to author David Winters and to our readers for the printing error.

2

Id., at 6, 13.

3 Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. ON TELECOMM. & HIGH TECH. L. 141 (2003).

4

Id., at 171-72.

5 Prepared Remarks of FCC Chairman Tom Wheeler, The Facts and Future of Broadband Competition, FEDERAL COMMUNICATIONS COMMISSION (Sept. 4, 2014), Apps.Fcc.Gov/Edocs_Public/Attachmatch/DOC-329161A1.pdf (The FCC defines broadband speeds as a minimum of 25 Mbps download and 3 Mbps upload.); see FCC, 2015 Broadband Progress Report (Feb. 4, 2015), Fcc.gov/Reports-Research/ Reports/Broadband-Progress-Reports/2015-Broadband-Progress-Report.

6

Id. At the lowest tier of broadband speeds, 75% of U.S. citizens have access to one broadband ISP at most.

7 See Declan McCullagh, Telco agrees to stop blocking VoIP calls, CNET (Mar. 3, 2005), Cnet.com/News/ Telco-Agrees-To-Stop-Blocking-Voip-Calls.

8 See Peter Svensson, Comcast Blocks Some Internet Traffic, THE WASH. POST, Oct. 19, 2007, available at WashingtonPost.com/Wp-dyn/Content/Article/2007/10/19/AR2007101900842.html.

See, e.g., Karl Bode, Windstream Hijacking Firefox Google Toolbar Results, DSLREPORTS, (Apr. 5, 2010), Dsleports.com/Shownews/Windstream-Hijacking-Firefox-Google-Toolbar-Results-107744; Peter Exckersley, Widespread Hijacking of Search Traffic in the United States, ELECTRONIC FRONTIER FOUNDATION (Aug. 4, 2011), Eff.org/Deeplinks/2011/07/Widespread-Search-Hijacking-In-The-Us (each reporting various companies hijacking consumers’ Internet searches and substituting monetized results).

9

See Cecilia Kang, FCC Fines Verizon $1.25M for Blocking Tethering Apps, THE WASH. POST, Jul. 31, 2012, available at WashingtonPost.com/Blogs/Post-Tech/Post/Fcc-Fines-Verizon-125m-For-BlockingTethering-Apps/2012/07/31/gJQAXjRLNX_blog.html. Tethering lets users pass their cell phone’s data connection to their computer for Internet access.

10

See Adap Liptak, Verizon Blocks Messages of Abortions Rights Group, N.Y. TIMES, Sept. 27, 2007, available at NYtimes.com/2007/09/27/us/27verizon.html.

11

12

Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

13

Id. at 659.

During the open comment period, the FCC received over 3.7 million comments both in favor of and against Net Neutrality, more than double the number of comments it received in response to Janet Jackson’s infamous “wardrobe malfunction” at Super Bowl XXXVIII. See Jacob Kastrenakes, FCC received a total of 3.7 million comments on net neutrality, THE VERGE (Sept. 16, 2014), TheVerge.com/2014/9/16/6257887/ Fcc-Net-Neutrality-3-7-Million-Comments-Made.

14

The FCC’s Net Neutrality rules require only three things: (1) no blocking access to legal content, applications, services, or non-harmful devices; (2) no throttling, impairing, or degrading lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and (3) no paid prioritization favoring some lawful Internet traffic over other lawful internet traffic in exchange for payments.

15 FCC, Fact Sheet: Chairman Wheeler Proposes New Rules for Protecting the Open Internet, at 7, Apps.Fcc. gov/Edocs_Public/Attachmatch/DOC-331869A1.pdf.

16

Winters, supra note 1, at 13.

Nashville Bar Journal • March 2016

17

Death and Dignity: John Jay Hooker, Jr.

(August 24, 1930 – January 24, 2016)

By Eleanor Wetzel Time for Hooker1

There are so many anecdotes and stories about one of Nashville’s Lions of the Bar—none of which can be told with the flourish or eloquence of John Jay Hooker, Jr. himself. While John Jay championed civil rights and played a pivotal role in Baker v. Carr, he also was known for his political losses. That is where we will start, as it is where in his later years, John Jay often began when reminiscing.2 John Jay admired his father, John Jay Hooker, Sr., a well-respected member of the bar known as a “lawyer’s lawyer.” Like most sons, John Jay wanted to make his namesake proud. A few days after John Jay lost the governor’s race to Winfield Dunn, John Jay approached his father privately on December 24, 1970, the night of the law firm holiday party.

Embarrassed by the loss and the “gruesome experience” of enduring Nixon’s politically motivated and highly publicized SEC probe of Minnie Pearl Chicken, John Jay said, “Papa, I am so sorry about the governor race and what I did to the family name.” “Don’t be, boy,” responded his father, “You did what you thought right, and what was right. You are not bitter and that is a wonderful accomplishment.” Here, John Jay would have told you that his is when he learned, “Losing is not the worst thing in the world. What is worse is not getting in the game.” As John Jay departed that Christmas Eve, his father raised his hand, bringing his index finger to his thumb, “My boy, forgiveness.” John Jay Hooker, Sr. died that night.

John Jay embodied concepts of forgiveness and fairness—even as a child.

Attorney Jerry Colley, now 88, recounted the story of his initial chance meeting with 10-year old John Jay.3 On a sweltering day, Colley had taken the Ladd’s Bus from Centerville to Nashville to play in a tennis tournament at Belle Meade Country Club. Unfamiliar with the bus route, Colley arrived an hour late; his opponent already declared winner by forfeit. As Colley tells it, he pled his case to the organizer who informed him he was not eligible to play. John Jay, within earshot, told Colley that he knew his scheduled opponent and immediately ran to find him. Much to Colley’s surprise, John Jay convinced Paul Sanders to play, having already won. Although Sanders “beat the hell” out of Colley, he reminisces, “It was a long ride back [home] but gratifying 18

Nashville Bar Journal • March 2016

because I got to play. I thought I would never forget what that little boy did for me, and I didn’t.” Colley’s path took him to Vanderbilt law school, and during his final year, he ran into 1L John Jay. When John Jay did not recognize Colley, he offered, “The sad little boy who wanted to play tennis from Centerville?” After a laugh, the two bonded and became lifetime friends, with Colley assisting on John Jay’s 1966 and 1970 gubernatorial campaigns—even serving as campaign manager for southern Middle Tennessee during ’66.

John Jay Hooker aspired to be Tennessee Governor, but despite his desire and commitment, he was not destined for political office.4 He, however, unquestionably played a significant role in politics and the law.

John Squires, former reporter for The Tennessean and Chicago Tribune editor has said, “If you look, you’ll find John Jay Hooker in the middle of some most interesting, most important public policy events in the 20th century.”5 John Jay’s initial foray into the political fray came one year after law school graduation when Jack Norman, Sr. asked John Jay to be his assistant in 1958, for the historic impeachment trial of Chattanooga Judge Raulston Schoolfield. Unbeknownst to John Jay at the time of hire, Jack Norman chose John Jay to conflict out John Jay’s father from potentially serving as Schoolfiend’s counsel since the two had been close friends. Then-U.S. Senator Robert (“Bobby”) F. Kennedy testified at the Schoolfield trial. This convergence of events led to John Jay’s lifelong friendship with the Kennedy family. When Kennedy missed his flight home, John Jay had the fortune of serving as his host. That day John Jay became a “devoted Kennedy man…I loved him with all my heart ’til the day he died.” John Jay officially served as Bobby Kennedy’s special assistant (1961), but in actuality was akin to a man Friday,6 and became an extension of the Kennedy family.7 John Jay provided a living link to people generations of lawyers have only read about such as the Kennedys and Eleanor Roosevelt. As John Jay said, “It’s not who you know, it’s how you know them.”

Time for Tennessee John Jay devoted himself to the Tennessee Constitution, “Your Constitution.” He carried a copy on his person. He committed the text to memory. He denied being a constitutional scholar, stating he was merely a “serious student”, yet he possessed an innate talent to interpret the language. Perhaps it was a family trait; after all, he was a descendant of Henry Williamson (signor of the Tennessee Constitution in 1870) and William Blount (signor of the U.S. Constitution and one of the authors of Tennessee’s first state constitution).

John Jay felt an obligation to correct what he saw as inconsistencies in the law: “When I didn’t get elected [to a political office], I saw myself as a guardian of our constitution. I concluded that if I didn’t do it, who would?”8 Article I, section 1 particularly spoke to John Jay and fueled his pursuit of advancing civil rights, including his last cause.

Time for Progress A champion of the Civil Rights movement, John Jay devoted himself to seeking racial equality and ensuring voting rights. Once diagnosed with terminal stage IV cancer in January 2015, however, the political became intensely personal. John Jay’s final political and legal battle concerned “death with dignity,” which he characterized as “the ultimate civil right.” He first approached the Tennessee legislature. While the legislature considered “aid-in-dying” for the first time in Tennessee, John Jay, along with three of his doctors, simultaneously filed a constitutional challenge in court. Contrary to the implication made by the New York Times,9 John Jay’s case has not died with him.

a dozen organizations requested leave to file amicus briefing, which was granted, and an amicus brief was filed February 17. At press time, the Plaintiffs have the opportunity to file response briefs, and no oral arguments have been scheduled.

John Jay’s passing on January 24, however, has required the Plaintiffs’ legal team, Hal Hardin (John Jay Hooker’s long-time friend) and Cynthia Chappell, to regroup and review how to proceed in this case of national importance. As Chappell has noted, any time there is a death of a party mid-litigation, strategic decisions must be made.

This was a man who wasn’t ready to die, didn’t want to die, but wanted death on his own terms. John Jay was honest and brave about his prognosis and his fears. He never complained. We had many unvarnished conversations about loss of dignity and the prison of one’s body. Even when losses in the lawsuit occurred, he remained resolute.

He insisted that we were right, and if we were right, we would win.

“Keep fighting,” he would say when we left him.

John Jay’s medical team currently remain as Plaintiffs in the case. There also is the possibility to seek a substitute plaintiff to step in John Jay’s position. He, however, put a recognizable face on the cause, which can never be replaced. Most significantly, the quandary exists that the court may defer to the legislature while politicians may defer to the court to make the ultimate decision regarding constitutionality before (re)considering any proposed legislation. A multitude of factors, including the family’s interest, must be considered in determining how to proceed.

History & Status of Proposed “Death with Dignity Act”13 On March 31, 2015, House Minority Leader Craig Fitzhugh (D-Ripley), along with two co-sponsors, proposed the Tennessee Death with Dignity Act (HB 1040) in the House while Sen. Reginald Tate (D-Memphis) sponsored a companion bill —Cindy Chappell, legal counsel for John (SB1362). Referred to the Senate Health Jay Hooker, Jr. and Welfare Committee, a hearing was held on June 9, 2015, where John Jay and others testified. (The recording of John Jay’s passionate and poignant testimony is available for viewing online.14) HB1040 and SB1362 then were sent to “Summer Study”, which is History & Status of “Aid-in-Dying Lawsuit” euphemism for essentially killing a bill (or more accurately, and perhaps The case of Hooker et al. v. Slatery et al. commenced on May 19, 2015. ironically, the bills wither away due to legislators electing to avoid any The Chancery Court held a hearing on July 10, followed by briefing. active decision making).

Ultimately, the Court granted the Defendants’ motion for judgment on 10 the pleadings by written order issued September 19, 2015. Although Death with Dignity the Court held that (1) it lacked jurisdiction to enjoin the enforcement The pursuit of “death with dignity”, or “aid-in-dying,” is not synonyof Tennessee criminal law banning assisted suicide (T.C.A. § 39-13-216) mous euthanasia. Aid-in-dying refers “to the practice, upon the request and that (2) none of the Plaintiffs had standing because they did not of a mentally competent, terminally ill adult patient, of a physician have “sufficient personal stake in the outcome”, the Court continued, prescribing life-ending medication, which the patient self-administers” finding that the Plaintiffs failed to prove a fundamental right, further if he or she elects to do so, and the physician would be exempt from noting even if they had, the Court would examine the Act at issue ([Anti-] prosecution for assisting a suicide,15 currently a felony pursuant to Assisted Suicide Act) under strict scrutiny analysis, and as such conclude T.C.A. § 39-13-216(g). a compelling state interest exists and the Act is not void for vagueness; Like the vast majority of readers, as a man of means John Jay could have thus, the Act is constitutional. controlled his own destiny. Suicide is not illegal in Tennessee. Nor is Due to the urgency of the matter, Plaintiffs appealed directly to the it illegal in Tennessee for a medical professional to provide significant Supreme Court, which issued a per curiam decision denying the redoses of pain controlling medication if it is “calculated or intended” to quest to use its reach-down jurisdiction: “Although the Court is not relieve pain even though it results in cessation of life (think “angel of unsympathetic to Mr. Hooker’s health issues, there are dispositive death”).16 But, John Jay was a man of the people and fought for all to non-constitutional issues that were addressed by the trial court and have the right to self-determination regardless of means. which must be addressed on appeal before any constitutional issued 11 raised by the Plaintiffs may be considered.” The case now continues During his last months, John Jay campaigned for death with dignity as in the Court of Appeals. After the State filed its brief in mid-February, much as his body permitted: “I’ve been to the legislature. I’ve been to a Continued on page 24

Nashville Bar Journal • March 2016

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The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. Members will be listed monthly in the Nashville Bar Journal and will appear in our annual Attorney Directory.

Contact vicki.shoulders@nashvillebar.org if you have any questions. Thank you for supporting your local bar association!

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Nashville Bar Journal • March 2016

Loeb & Loeb, LLP (5) Martin Heller Potempa & Sheppard, PLLC (6) May, Hagan & Todd, PLLC (3) Mink & Duke, PLLC (3) MTR Family Law, PLLC (3) Nashville Electric Service (3) Neal & Harwell, PLC (31) Nelson Mullins Riley & Scarborough (14) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (14) Ortale, Kelley, Herbert & Crawford (23) Patterson Intellectual Property Law, PC (20) Prochaska Quinn & Ferraro, P.C. (3) Reid Leitner Law Group, PLLC (3) Reno & Cavanaugh PLLC (5) Riley Warnock & Jacobson, PLC (18) Robinson, Reagan & Young, PLLC (4) Sarah Cannon Research Institute (3) Shackleford, Bowen, McKinley & Norton, LLP (7) Sherrard & Roe, PLC (34) SIMS|FUNK, PLC (3) Spicer Rudstrom, PLLC (13) Stites & Harbison, PLLC (29) Taylor, Pigue, Marchetti & Blair PLLC (6) Tennessee Justice Center (4) Trauger & Tuke (5) Watkins & McNeilly, PLLC (10) Weatherly, McNally & Dixon, PLC (3) White & Reasor, PLC (6) Wiseman Ashworth Law Group, PLC (7)

NASHVILLE BAR ASSOCIATION Benefits of Membership

The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with tangible and intangible benefits for your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

HERE ARE A FEW OF THE MANY REASONS TO BELONG TO THE NBA...

• Connect with Your Local Legal Community The NBA provides numerous opportunities to meet and connect with other Nashville-area attorneys. Through networking, social events, continuing education, committee work, and other career and personal development opportunities, we help bring our profession together.

• Learn from the Experts Attend NBA CLEs to hear from law practice leaders who will share their expertise and practical experience. Be educated, enlightened, and even entertained by keynote speakers and other special guests from the legal community—local, regional, and national.

• Expand Your Business and Client Base Build relationships, network, and gain referrals through activities and programs, CLEs, committee work, volunteer projects, or by joining the NBA Lawyer Referral and Information Service at the member rate.

• Be a Leader Set the pace in the legal community by serving on committees, publishing Nashville Bar Journal articles, helping produce or present CLE seminars, joining the Young Lawyers Division, participating on the NBA Board, or working with the Nashville Bar Foundation.

• Be a Better Lawyer Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality CLE programs and committee in-service meetings, and stay informed with insightful and timely articles in the Nashville Bar Journal.

• Sharpen Your Practice Skills with CLE Attend our innovative, and engaging CLE courses featuring local, regional, and national presenters. Our skilled faculty will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates.

• Give Back to the Community Serve the public and help improve the image of lawyers by participating in community service projects offered by the Young Lawyers Division and the NBA throughout the year, volunteer for Dial-A-Lawyer—a free call-in service where members provide general legal information to the public, or help with one of the many projects offered through the Minority Opportunities Program.

• Meet New People Don’t just hang out with familiar faces. Use social gatherings, NBA CLE’s, committee work, and Young Lawyer Division events and community projects to build your network of contacts throughout Nashville and surrounding counties.

• Refresh and Renew Yourself Take time out from your daily routine to attend a Bar event or activity—such as the annual Golf Tournament, Free Member Picnic or one of our many Happy Hour gatherings—and catch up with old friends or unwind with new ones.

AND MORE...

• Use the NBA Center—to hosts meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access.

• Visit our Online Career Center—where you can post your resume, search job postings, and access the career resources library.

• Receive Announcement Emails—covering timely events, membership news, spotlighted events, and CLE announcements.

• Participate in our Lawyer2Lawyer Mentoring program—a web-based resource designed to connect experienced attorneys with newer attorneys who desire assistance with substantive legal issues or the personal and professional demands of practicing law.

• Use the NBA Attorney Directory—to find names, photos, and contact information for Davidson County lawyers and judges, firm listings, court information, and areas of practice of local attorneys.

Nashville Bar Journal • March 2016

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Disclosure Bradley Arant has been named 2016 “Firm of the Year” in Alabama and Tennessee by Benchmark Litigation. Robert Maddox and Lela Hollabaugh accepted the award on the firm’s behalf at the New York ceremony held February 11. This marks the fifth consecutive year that Bradley has been honored by Benchmark Litigation. The 2016 Benchmark award winners were determined through research, including interviews with litigators and their clients, conducted for the 2016 edition of Benchmark Litigation, which is the only publication that focuses exclusively on litigation in the United States. Bradley Arant was “highly recommended” in Alabama, Mississippi, and Tennessee, and “recommended” in North Carolina, in the 2016 edition of Benchmark Litigation. The publication also recognized 44 of the firm’s attorneys as either litigation “stars” or “future stars.”

The law firm of Dodson Parker Behm & Capparella, PC, has named two new shareholders in the firms, Candi Henry and Tyler Chance Yarbro.

Candi Henry provides advice to businesses and municipal agencies and serves on the firm’s transactional practice team. Her litigation practice focuses on appeals. Henry joined the firm in 2008, after having served as judicial law clerk to the Honorable William C. Koch Jr., both on the Tennessee Court of Appeals and on the Tennessee Supreme Court. Henry is an instructor of legal writing and research at the Nashville School of Law, and she was appointed by the Tennessee Supreme Court to serve as an assistant to the Tennessee Board of Law Examiners. Recently she was named to the Tennessee Supreme Court’s 2015 “Attorney for Justice” Pro Bono Honor Roll.

Tyler Chance Yarbro began her legal career as a public defender, and she joined the firm in 2011.

She focuses her practice on litigation, serving clients in employment, personal injury, criminal and probate matters. She is an adjunct professor of trial advocacy at the Vanderbilt University Law School. Also named to the 2015 “Attorney for Justice” Pro Bono

\Dis*clo”sure\ (n) The act of revealing, releasing, or bringing to light relevant information concerning NBA Members and Staff.

Announcements n People on the Move n Firm News Honor Roll by the Tennessee Supreme Court, Yarbro dedicates time to the community, serving on the YWCA’s Advocacy Committee, Metro Nashville’s Community Corrections Advisory Board and the board of directors for Rooftop Nashville.

Gullett Sanford Robinson & Martin PLLC (GSRM) attorneys Matt Haskell and Rob Hazard have been elevated to member level in the firm.

Matt Haskell is a member of the firm’s Litigation and Labor and Employment practices. He represents companies in the transportation, life sciences and healthcare industries, as well as small businesses and governmental entities, in employment, personal injury and civil rights lawsuits in both federal and state courts. Prior to joining GSRM, he practiced in the Tennessee Attorney General and Reporter's Office as an assistant attorney general. Haskell received his law degree from Mercer University and his undergraduate degree from Sewanee Rob Hazard is an attorney and Certified Public Accountant whose practice is dedicated to estate planning, business and corporate law, and commercial transactions. Prior to joining GSRM in 2009, Rob worked as a CPA with Ernst & Young, LLP in New York where he provided advisory services to business organizations. He received his law degree from Saint Louis University School of Law, his M.B.A. from Middle Tennessee State University, and his undergraduate degree from University of Tennessee.

Benjamin C. Aaron has joined Neal & Harwell, PLC, as an associate. Aaron previously worked as an attorney with his father, Doug Aaron, in Manchester. He served as a clerk at The Garza Law Firm in Knoxville, and served as a student attorney at the University of Tennessee Legal Clinic while in law school.

Aaron is a 2015 graduate of the University of Tennessee College of Law, where he graduated first in his class. He earned his B.S. in Business Administration, summa cum laude,

at the University of Tennessee, Knoxville, in 2012. He is a member of the Tennessee Bar Association and the Nashville Bar Association.

Originally from Manchester, Tennessee, Aaron and his wife live in Franklin.

Chandra N.T. Flint, member at Neal & Harwell, PLC, has been selected as a member of the 2016 class of Fellows, participating in a landmark program created by the Leadership Council on Legal Diversity (LCLD) to identify, train, and advance the next generation of leaders in the legal profession. Flint has been with the firm since 2004. Her practice focuses on family law and criminal and civil litigation. She received her J.D. degree from Vanderbilt University Law School in 2004, and her B.A. with distinction from the University of Wisconsin, Madison. Flint is a member of the American Bar Association, Tennessee Bar Association, Nashville Bar Association, and the Nashville Lawyer’s Association for Women.

She is admitted to practice in Tennessee and the United States District Courts for the Middle, Western, and Eastern Districts of Tennessee.

Flint serves on the board of directors of CASA (Court Appointed Special Advocates). She and her family live in East Nashville.

Mariam N. Stockton has been named an associate at Neal & Harwell, PLC. She was previously a litigation specialist at the firm.

Stockton practices primarily in the area of civil litigation. Her experience includes entertainment litigation, medical malpractice, personal injury and contract disputes, as well as corporate investigations. She is a 2010 graduate of Nashville School of Law and a 2005 graduate of Middle Tennessee State University, where she earned a Bachelor of Arts in political science with a concentration in pre-law. Stockton will begin her Master of Laws in trial advocacy this fall. Stockton is a member of the Tennessee Bar Association, the Nashville Bar Association, and the Lawyers’ Association for Women. She is a resident of Nashville. n Nashville Bar Association members may send Disclosure announcements to jill.presley@nashvillebar.org.

Submissions are subject to editing.

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Nashville Bar Journal • March 2016

2016 NBA PREMIER MEMBERS Frank Abernathy Elizabeth Alexander Gail Vaughn Ashworth Mark Beveridge Joe P. Binkley, Jr. C. Dewey Branstetter Jr. Kenneth Sherman Byrd Christopher Cardwell Kathryn Caudle Mark P. Chalos John Ray Clemmons Lewis Conner Patricia Cottrell John Day Joy Day Robert Dempsey David Downard Blair Durham John Floyd Keith Frazier Grant Glassford Charles Grant Jay Harbison William Harbison Marian Harrison Trey Harwell Aubrey Harwell Lisa Helton Paul Housch R. Jan Jennings Jordan Keller John Kitch William Koch Irwin Kuhn Ed Lanquist Andrew Laufman Thomas Lawless

Claudia Levy Randal Mashburn Amanda McClendon Rocky McElhaney Robert Mendes Jeffrey Mobley Marlene Moses Patricia Moskal Michael Mossman Mattison Painter David Parsons Gregory Pease Tracy Powell David Raybin Sara Reynolds Maria Salas Kathryn Sasser Carolyn Schott Nathan Shelby Kimberly Silvus Elizabeth Sitgreaves Eric Smith Saul Solomon John Spragens Michael Stewart James Stranch III James Stranch IV Claire Thomas Hon. Aleta Trauger Howard Vogel Michael Wall Elizabeth Washko James Weatherly Peter Weiss Thomas White Thomas Wiseman Stephen Young

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs and Services.

Contact vicki.shoulders@nashvillebar.org for details.

Dial-A-Lawyer Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.

Thank you to our February volunteers!

Chris Hugan Tom Lawless Doug Pierce Joe Rusnak

To volunteer your time, please contact our LRIS Coordinator at wendy.cozby@nashvillebar.org.

Pro Bono credit does apply and dinner will be provided.

Welcome New NBA Members!

Benjamin Cole Aaron Elaina Al-Nimri Morgan Blackhurst Kathryn Bird Ronald Andrew Cina Catherine Ciriello Seth Cline Julie Cottingham

Kimberly Ann deMent Lisa Bilik Forberg Anne Frazier Kyler Scot Garman Bethany Perry Glandorf Peako Jenkins Ashleigh Johnson Vidhi Joshi

Tyler McKendrick Kristin Kenney Lila Kathleen Mitchell Katie O'Brien George Scoville Nathan Shelby Kevin Teets Allen Willemsen Nashville Bar Journal • March 2016

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so help me God.18

Licensed in Indiana and Tennessee, Eleanor (Ellie) Wetzel focuses on criminal and constitutional law. The author is indebted to Hal Hardin, Cindy Chappell, and Kendall Hooker Hinote, for their generosity of time, their Death and Dignity trust, and their willingContinued from page 19 ness to share memories for this tribute.

During his last months, John Jay campaigned She regrets that she and John Jay were not for death with dignity as much as his body able to complete their planned co-written permitted: “I’ve been to the legislature. I’ve article on death with dignity. been to a judge. The fight goes on. I may be Endnotes gone, so I am out to talk to you, so the cause 1 Albert Gore Research Center, The History of Political Songs and Jingles in Tennessee, GoreCenter.mtsu.edu/ goes on.”

Education/Political_Jingles/Political_Jingles_in_TN2.

Although he did not die with the dignity he was fighting for, John Jay Hooker, Jr. died as a dignified man.

Time for You & Me John Jay Hooker, Jr. is a testament that lawyers can make a difference in civil rights. He adamantly believed all lawyers have the power to change life, but it takes more than professional effort, it requires living up to the Oath: I, ___________, do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Tennessee, and that I will truly and honestly demean myself in the practice of my profession to the best of my skill and abilities, 24

Nashville Bar Journal • March 2016

shtml (includes audio recordings of Hooker campaign).

Unless otherwise attributed, quotations by John Jay Hooker Jr. & Sr. are from remarks made by John Jay at the Nashville L-Club Sept. 12, 2015 meeting.

2

James Bennett, Columbia Attorney Remembers Tennis Match Introduced Him to John Jay Hooker, COLUMBIA DAY HERALD, Jan. 25, 2016.

3

4 John Jay’s multiple campaigns for Tenn. Gov. and U.S. Senator are summarized in detail at Our Campaigns, OurCampaigns.com/CandidateDetail. html?CandidateID=422.

Remembering John Jay Hooker Jr., THE TENNESSEAN, Jan. 24, 2016, available at Tennessean.com/Story/ News/2016/01/24/Remembering-John-Jay-HookerJr/79225348/ (compilation of quotes by various local and national leaders).

5

John Jay’s Feb. 6, 2016 memorial service convened at the public library to honor his love for the written and spoken word. Fellow linguaphiles, will appreciate that “man Friday” originated in 1885-90, pre-dating the more

6

commonly known “girl Friday” by at least 50 years.

See, e.g., John McLemore, Why Was Jimmy Hoffa in Nashville?, 15 NASHVILLE B.J. 8 (July 2015).

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8 See, e.g., Tennessee State Library Archives, The Star Chronicles: John Jay Hooker Jr.—When It Came to Tennessee Political Wars He’s Always Volunteer, Sos.Tn.gov/Tsla/Tri-Star-Chronicles-JohnJay-Hooker-Jr. 9 Sam Roberts, John Jay Hooker Jr., a Political Gadfly, Is Dead at 85, N.Y. TIMES, Jan. 27, 2016, at B8.

10 Memorandum and Order, John Jay Hooker, et al. v. Herbert Slatery, III, et al., No. 15-0615-II (Davidson Co. Chancery Court (Sept. 29, 2015), available at ChoiceIsAnIllusion.Files.Wordpress. com/2015/09/hooker-v-slatery-chancery-court-decision.pdf.

John Hooker, et al. v. Herbert Slater, III et al., No. M2015-01982SC-RDM-CV (Tenn. Nov. 9, 2015)(per curiam).

11

John Hooker, et al. v. Herbert Slater, III et al., No. M2015-01982COA-R3-CV (Tenn. Ct. App.).

12

13 Tenn. Gen. Assembly, HB1040 & SB 1362, Wapp.Capitol.Tn.gov/ Apps/BillInfo/Default.aspx?BillNumber=HB1040&GA=109 (provides history of actions on bills and video footage of floor debate).

14 Tenn. Gen. Assembly, Streaming Video Senate Health and Welfare Committee, Wapp.Capitol.Tn.gov/Apps/Videowrapper/ default.aspx?CommID=660000.

Order, supra note 10, at 2. More information about the death with dignity movement is available through organizations such as Compassion and Choices (CompassionAndChoices.org) and Death with Dignity (DeathWithDignity.org).

15

TENN. CODE. ANN. § 39-13-216(b); see also Order, supra note 10.

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See also John Jay Hooker, Jr. Obituary, THE TENNESSEAN, Jan. 28-31, 2016 (“Mr. Hooker had prepared to deliver a final speech on the virtues of the law and the civic responsibility to be its honest critic and advocate. Unfortunately unable to make it, he would find great peace in knowing that others will carry on the courageous work of search for truth and justice.”)

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TENN. S. CT. R. 6.

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