Nashville Bar Journal | August/September 2023

AUGUST/SEPTEMBER 2023 | VOLUME 23 | NO. 4

FEATURE

The Centenary of the Tennessee Department of Correction ALSO

Let Me Stop You Right There: State Preemption of Local Authority is a Nationwide Trend #MeToo at Work: A Paradigm Shift Through Federal Legislation Understanding the New Pregnant Workers Fairness Act

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FE ATU R E

The Centenary of the Tennessee Department of Correction

by David Raybin DE PA R TM E N TS

From the President Gulam Zade

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Calendar of Events

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Hear Ye, Hear Ye

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Board of Directors Elections Membership Renewals Tune Award Nominations Annual Member Picnic

CLE Schedule

AUGUST/SEPTEMBER 2023 | VOLUME 23 | NO. 4

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Let Me Stop You Right There: State Preemption of Local Authority is a Nationwide Trend Candi Henry

at Work: A Paradigm Shift Through 14 #MeToo Federal Legislation Mekesha Montgomery & Seth Granda

the New Pregnant Workers 21 Understanding Fairness Act

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Lynn Ridgeway Zehrt

barBITES

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Hearsay

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100% Club

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C O L UMNS

Background Check 11 Bart Pickett Gadget of the Month 15 Bill Ramsey & Phillip Hampton Capitol Notes 23 Peggy Sue, the Beagle Hound

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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FROM THE PRESIDENT

August/September 2023 | Gulam Zade GULAM ZADE, Publisher WILLIAM T. RAMSEY, Editor-in-Chief SUMMER GEYER, Managing Editor LAUREN POOLE, Managing Editor ADRIENNE BENNETT CLUFF, Layout/Design/Production

EDITORIAL COMMITTEE RAMONA DESALVO TIMOTHY ISHII J. BART PICKETT KATLIN RYAN KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1350, Nashville, TN 372192419.

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/ NashvilleBarJournal.

The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Adrienne.BennettCluff@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content.

NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1350 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. Our mission is to improve the practice of law through education, service, and fellowship. The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

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The NBA’s mission is to improve the practice of law through fellowship, education and service. The NBA’s staff, its board of directors, membership, and volunteers carry out this mission daily. As a member, there are several ways you can help the NBA advance its mission and serve the legal community. Here are 4 opportunities to consider if you haven’t already: • Become a Premier Member. The NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost commitment and support to our programs and services and only costs $100 more each year per member. Premier Membership dues help us continue to make a difference in the profession, our community, and the lives of our members.

• Serve on a committee. Our committees evaluate important bar or court-related issues. By volunteering with a committee, you will not only become part of enhancing the local legal profession, but you will have the opportunity to build your professional network by forging lasting relationships with local, like-minded attorneys, develop and sharpen vital skills like leadership, collaboration, and team-building, and leverage career advancement opportunities—all while making a difference in the profession, our community, and your life.

• Volunteer to host or be a speaker for a CLE. The NBA is a great source for cutting edge, quality continuing legal education. The NBA develops and sponsors a wide range of CLE programs on diverse topics in a variety of time frames including one, two, and three hours, half-day, and full day courses. CLE programs focus on relevant substantive law and practice skills needed to support and enhance attorney practice and professionalism. By volunteering, you can help educate other lawyers and bring attention to important, timely topics of relevance.

• Consider the NBA in your estate planning. Your estate plan should ensure that the things that matter to you in life are part of your legacy. As you think about how you want your property and assets to be distributed after your death, consider leaving a gift to the NBA. By naming the NBA in your estate plan, you can leave a legacy and make a lasting impact. The NBA benefits greatly from the generous gifts of donors.

I challenge you to consider committing to one or more of the areas above to help us further our mission and ensure the NBA continues to thrive for many years to come.

Thank you for being a member,

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

Calendar of Events | Full calendar online at NashvilleBar.org AUGUST 2023 S U N D AY

M O N D AY

T U E S D AY

W E D N E S D AY

NBA Board Meeting 4:00pm | Bass Berry & Sims Dial-A-Lawyer 6:00-8:00pm

Entertainment, Sports & Media Happy Hour 5:30pm-7:00pm | Sambuca

LAW Board Meeting 11:30am | NBA Office

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T H U R S D AY

F R I D AY

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Historical Committee Meeting 11:30am | NBA Office/Zoom

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Ethics Committee Meeting 12:00pm | NBA Office

Memorial Service Committee Meeting 12:00pm | Zoom YLD Board Meeting 12:00pm | Bradley

S AT U R D AY

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YLD Carbolic Smoke Ball 7:30pm-10:30pm | Anzie Blue

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SEPTEMBER 2023 S U N D AY

M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY

S AT U R D AY

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CLE Committee Meeting 11:30am | NBA Office

NBA OFFICE CLOSED

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Circuit & Chancery Court Committee Collegiality Coffee 10:30am | Metro Courthouse Jury Assembly Room

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NBF Trustees Meeting 11:30am | NBA Office YLD Mural Unveiling 5:30pm | Tennessee Justice Center

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Ethics Committee Meeting 12:00pm | NBA Office/Zoom

Memorial Service Committee Meeting 12:00pm | Zoom

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Caen Sister Cities Delegation in Nashville

Caen Sister Cities Delegation in Nashville

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14 NBJ Editorial Committee Meeting 12:00pm | TBD Finance & Executive Committee Meeting 4:00pm | NBA Office

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16 Habitat for Humanity Build

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Caen Sister Cities Delegation in Nashville NBA Free Member Picnic 5:30pm-8:30pm | Walk of Fame Park

Caen Sister Cities Delegation in Nashville

Caen Sister Cities Delegation in Nashville

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AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL Journal Journal

2023 NBA BOARD OF DIRECTORS GULAM ZADE, President

BAHAR AZHDARI, President-Elect LORA FOX, First Vice President

MARLENE MOSES, Second Vice President JD THOMAS, Secretary GIL SCHUETTE, Treasurer GRACE FOX, Assistant Treasurer LELA M. HOLLABAUGH, General Counsel BEAU CRESON, YLD President MARTESHA JOHNSON MOORE, Immediate Past President KAYA GRACE PORTER, First Vice President-Elect

Hear Ye, Hear Ye | Events of Interest 2023 Board of Directors Election

Members of the NBA will be electing six new directors to serve on the Board for a four-year term commencing January 1, 2024. If you are an active member of the NBA and are interested in being considered for Board service, please submit your name for consideration to Abby.Sparks@nashvillebar. org no later than Friday, August 4. The election will take place in November, and all members whose 2024 membership dues are postmarked no later than October 31 will be eligible to vote. n

KIM LOONEY, Second Vice President-Elect CHRISTEN BLACKBURN JAZ BOON AMY WILLOUGHBY BRYANT

Membership Renewals

It’s time to renew your membership! The 2023 membership year ends on October 31. You may renew online at NashvilleBar.org/Renew (it only takes a few minutes!), by contacting Vicki at Vicki.Shoulders@nashvillebar.org or calling 615242-9272. If your firm is part of Firm Billing with the NBA, please check with your administrator before renewing online. Thank you for your continued support and membership! n

DANIEL CLAYTON ERIN COLEMAN SHERIE EDWARDS HON. ANA L. ESCOBAR SAM FELKER MANDY FLOYD ELIZABETH FOY PAZ HAYNES JOSEPH HUBBARD JUNAID ODUBEKO BEN RAYBIN WORRICK G. ROBINSON IV MARIE SCOTT TIM WARNOCK LUTHER WRIGHT

NBA TEAM

Have an Idea for a CLE?

We are looking for creative, relevant, and Zoom-friendly CLE seminar ideas!

Please contact Cameron at Cameron.Adkins@nashvillebar.org if you have an idea or would like to see a specific topic in the coming months. We appreciate you! n

ABBY SPARKS, Executive Director CAMERON ADKINS, CLE Director ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator ASHLEY MOORE, Director of Accounting VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Adrienne.BennettCluff@nashvillebar.org.

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Tune Award Nominations

We are now seeking nominations for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on Wednesday, December 6, to be held at the Music City Center. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys.

To submit your nomination, email Traci.Hollandsworth@nashvillebar.org no later than Friday, October 13, expressing why you believe your nominee is deserving of this prestrigious award. Visit NashvilleBar.org/Awards for more information. n

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

Hear Ye, Hear Ye | Events of Interest Welcome to the NBA! Congratulations on your membership—thank you for joining the NBA! We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@ nashvillebar.org with questions or to learn more.

NEW MEMBERS (MAY 1 - JUNE 30) Kim DeSario Brian Doyle-Wenger Ethan Eggleston Joseph Freeman Ally Hicks Rollin Horton Julianna Kearney Elle Kern Jenny Kiesewetter

Events At-A-Glance August 18 | 25th Annual Carbolic Smoke Ball @ Anzie Blue

August 29 | Reception for Justice Sharon Lee @ Nashville School of Law

September 14 | YLD Mural Unveiling

Sierra Leitten Sam Lensing Jordan Meeks Agnes Pacheco Jake Peterson Hon. Eli Richardson Sam Shirley John Williams Malory Williams

@ Tennessee Justice Center

September 28 | NBA Member Picnic @ Walk of Fame Park

October 21 | YLD 20th Annual DISCO Race Judicata @ Edwin Warner Park

November 16 | Fall Memorial Service @ Downtown Presbyterian Church

December 6 | Annual Meeting & Banquet @ Music City Center

Annual Member Picnic (It’s Free!)

The 2023 Annual FREE Member Picnic will be held on Thursday, September 28, from 5:30-8:30pm, at Walk of Fame Park—

located downtown across from the Country Music Hall of Fame. This event is co-sponsored by the Metro Law Department and free for NBA members to attend..

Family-friendly, casual environment, friends and colleagues galore, an open bar stocked full of beer and wine, local Martin’s BBQ, and a bluegrass band. For sponsorship and registration information, visit NashvilleBar.org/Picnic or email Traci.Hollandsworth@nashvillebar.org. We look forward to seeing you there! n

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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Feature Story | David Raybin

The Centenary of the Tennessee Department of Correction While the actual name has changed several times over the years, the Tennessee Department of Correction has had a storied history worth recounting on its hundredth anniversary.

Our prison system was created in 1829 under the leadership of Governor William Carroll, who long advocated the abolition of corporal punishment. Prisoners were instead to be placed in solitary confinement in large institutions and provided Bibles so they would be reformed by doing penitence for their crime.1 It is from the word “penitence” that we derived the word “penitentiary.”

In less than a month from the Governor’s proclamation declaring the penitentiary law in effect, one George Washington Cook had the dubious distinction of being the first inmate. Cook was not assigned culinary duties, as the name might suggest, but, because he was a tailor, was made to cut and make his own suit, the first work ever done at the penitentiary.

The first prison was administered by a five-person Board of Inspectors. It was located south of 7th Avenue and Broadway and was later replaced with another facility on Church Street. Prisoners were employed to build the state capital. During the Civil War, the Union army took over the penitentiary for use as a military prison and the state prisoners were moved to Brushy Mountain.2 The new prison – affectionally called “The Walls” – was constructed in 1898 in Cockrill Bend. Designed with 800 single-occupancy cells, 1,403 prisoners were admitted to the prison on opening day, creating immediate overcrowding.

The prisons were operated by numerous boards and commissions which were answerable primarily to the legislature. The frequent alteration in administrative authority prompted a host of lawsuits whereby supervisors would sue when their office was abolished by some new legislation. For example, in 1915, the legislature adopted a new system for the penal facilities under the direction of a “Board of Control.” The Chaplain at the Brushy Mountain branch of the penitentiary was now deprived of his office by the new legislation and challenged it as being unconstitutional. The Supreme Court rejected the claim and found that it

was the Chaplain’s “misfortune that the Act on which his office hung stood in the way of a scheme for better government of the state’s institutions.”3 The government’s administrative problems were not limited to just the prison system. It 1922, there were at least 64 different departments and agencies, many of which operated outside of the governor’s control.

It was a bureaucratic nightmare. The officials of various departments and agencies all had their tenure, compensation, duties, and responsibilities fixed by statutes and could not be removed except for cause.

Into this chaos entered Governor Austin Peay. His first task was to reorganize state government. In 1923, at Peay’s urging, the legislature passed the Administrative Reorganization Act, which reduced 60 different agencies into eight departments which would be run by a commissioner who reported directly to the Governor and would hold office “at the pleasure of the Governor.” Not surprisingly, this vast alternation prompted litigation which resulted in an extensive opinion by the Supreme Court upholding the new scheme.4 Under the 1923 law, the prison and other facilities were transferred to the Department of Institutions (renamed the Tennessee Department of Correction in 1955).5 While the prison system was undergoing change, the Parole Board had a parallel history. Parole was established in 1913 as part of the Indeterminate Sentencing Law. An Advisory Board of Pardons was created in 1929, which created a system for parole eligibility and procedures for release. The Board of Pardons and Paroles was created in 1937, and later became a formal, independent entity.

In 1974, as a young Assistant State Attorney General, I was assigned representation of the Department of Correction, and functionally served as the attorney for the Parole Board. It was customary that the newest member of the Attorney General’s Office would be given the responsibility for these agencies because nothing happened at the Department of Correction or the Parole Board. That is, until 1976, when the newly appointed Parole Board Chair, Marie Ragghianti, walked into my office and advised that Governor Blanton and his legal counsel, Eddie Sisk, (continued on page 8) (continued on page 00)

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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Feature Story | The Centenary of the Tennessee Department of Correction might be selling clemency for cash. A few days later I found myself meeting with FBI Agent Hank Hillin and the rest, as they say, is history. 6 Because of the subsequent Blanton-pardon scandal, Lamar Alexander was sworn in as governor three days early to prevent the massive release of prisoners, some of whom may have paid for their pardons with cash.7 Once a backwater, prisons now became a major issue constantly in the media.

To reform our criminal justice system, Governor Alexander promoted new legislation, such as the Class X Felony Law of 1979 and the Tennessee Sentencing Reform Act of 1982, both of which I helped draft.

While this legislation promoted “law and order,” not a nickel was appropriated for prison construction, resulting in massive overcrowding.

By 1983, the Department of Correction was under the effective control of a Master appointed by the Federal Court. Commissioners of Correction would come and go. In 1985, prison riots occurred throughout the system causing millions of dollars in damage.

Because of these problems, the General Assembly was called into an Extraordinary Session devoted exclusively to prisons. It was an arduous process. One consultant remarked that prison reform is like “flying a plane to Atlanta and building the plane as you fly.”

The legislature authorized additional prison facilities, changed the rules for parole and probation, and authorized a State Sentencing Commission – Chaired by Judge Barbara Haynes – to review state criminal laws and revise punishments. The legislature enacted the Tennessee Sentencing Reform Act of 1989, which created our current sentencing structure. It was my honor to have served on the Commission for the entire nine years of its existence.

The two new prison facilities came online, along with the implementation of private prisons.8 Finally, pursuant to a 1993 federal court order,9 the old Tennessee State Penitentiary – “The Walls” – closed forever except for the occasional movie or television show.

There have been occasional attempts to reopen it in some other capacity, but the high cost of renovating the dilapidated structure has left little appetite for modification.

Things seemed to be on a positive track until 1995 when newly elected Governor Don Sundquist abolished the Sentencing Commission and permitted criminal legislation to go into free fall.

Parole was abolished for many offenses, and the prison population increased exponentially.

By 2022, the General Assembly assumed the traditional role of the Governor by administering prisons by legislative enactments, such as the “Truth in Sentencing Law” which requires that most prisoners serve all their sentences. Credits for good behavior were abolished. We have yet to see the long-term consequences of this new legislation.

In 1903, Governor James Berih Frazier remarked that the “disposition and treatment of those who commit crimes is always a delicate and difficult question; it should be a source of genuine satisfac8

(continued from page 7)

tion to the people of Tennessee that we have discovered and have in successful operation a system that comes as near solving that perplexing problem as any that has yet been tried.” Whether this system has been “successful” is debatable. Tennessee now incarcerates over 30,000 persons at a budget of over a billion dollars a year.

Whatever success our Department of Correction has had over the last 100 years is due in no small measure to the dedicated men and women who helped protect us and rehabilitate those who violate the law. Perhaps the next 100 years will show greater support for these correctional officials and employees and find new ways of improving our criminal justice system.

DAVID L. RAYBIN is a partner with Raybin & Weissman in Nashville where he concentrates in criminal trials and appeals. Mr. Raybin is the author of Tennessee Criminal Practice and Procedure (West 1984).

Endnotes

Tenn. Code Ann. § 41-21-211 still provides: “Each inmate shall be provided with a Bible, which the inmate may be permitted to peruse in the inmate’s cell at such times as the inmate is not required to perform prison labor.”

2 Among the prisoners held during this time was Mark Cockrill, a Confederate sympathizer whose West Nashville property would later be purchased for the construction of the new prison in 1898.

3 Quoted in House v. Creveling, 250 S.W. 357, 362 (Tenn. 1923).

4 House v. Creveling, 250 S.W. 357 (Tenn. 1923).

5 There were some other names in the interim. In 1937, the Department of Institutions became the Department of Institutions and Public Welfare, which had responsibility for the Confederate Soldier’s Home, School for the Blind, School for the Deaf, and certain regional psychiatric hospitals. In 1939, the Department of Institutions and Public Welfare was divided into a Department of Institutions and a separate Department of Public Welfare. In 1953, the responsibility over mental health facilities was separated to the Department of Mental Health, and in 1955 the Department of Institutions arrived at its present name: the Tennessee Department of Correction.

6 Marie Ragghianti’s story is recounted in the book Marie: The True Story and the film by the same name, staring Sissy Spacek. Marie’s trial attorney was Fred Thompson who began his acting by career portraying himself in the movie. TBI agent Hillin wrote his own book, FBI Codename TENNPAR. 7 The final days of the Blanton administration are recounted in Keel Hunt’s excellent book: Coup, published in 2013.

8 See, W.J. Michael Cody and Andy D. Bennett, The Privatization of Correctional Institutions: The Tennessee Experience, 40 Vanderbilt Law Review 1987 (1987).

Available at: https://scholarship.law.vanderbilt.edu/vlr/vol40/iss4/9 9 Grubbs v. Bradley, 821 F. Supp. 496 (1993). n 1

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

Editorial | Candi Henry

Let Me Stop You Right There: State Preemption of Local Authority is a Nationwide Trend In the spring of 2023, Tennesseans couldn’t escape news of friction between the General Assembly and local city leaders. Making headlines in Middle Tennessee were bills that seemed aimed at urban areas, some with specific impacts in Metro Nashville alone.

Among these were laws affecting local governance of police, cityowned facilities, and the structure of government.

Legislation during this session relating to police oversight boards resulted in the effective dissolution of the Nashville and Memphis organizations.1 The boards for the Metro Nashville Airport Authority and the Metro Sports Authority were vacated and reconstituted to provide the state with seats,2 the size of the Metro Nashville City Council was halved,3 and changes to the Convention Center Authorities Act of 2009 restricted Nashville’s use of funds generated by its flagship convention hall, Music City Center.4 Finally, enabling legislation for metropolitan governments was revised regarding “[r]equired votes for improvement to public facilities,”5—a complicated way to make it easier for NASCAR to hold races at the Nashville fairgrounds.

Predictably, litigation ensued.6 The session’s preemptive legislation was not limited to urban areas, however. From the abrogation of the pending ordinance doctrine7 to the prohibition against requiring that corrections officers live in the area they serve,8 from the “de-annexation” law allowing certain property owners to remove themselves from a municipality9 to the creation of a state-wide food truck fire permit regime,10 there was no shortage of fodder for discussion about local control, and this is a conversation not limited to the Volunteer State.

The National League of Cities has referred to the last several years as “The Era of Preemption.”11 The League, which represents 49 state municipal leagues and over 2600 cities—1566 of which are in the South—notes that actions to assert state control over local government decisions are accomplished both through express preemption and Dillon’s Rule provisions.12 Dillon’s Rule is a canon of construction that calls for strict and narrow construction of local governmental authority. The Tennessee Supreme Court has identified “shortcomings” with Dillon’s Rule, has articulated several exceptions to it, and has acknowledged that it is within the Court’s power to abrogate the rule.13 However, the Court has also acknowledged the “constitutional reality that, with limited exceptions, local governments are creatures of the state and possess no more authority than has been conferred upon them by the General Assembly,” which justifies continuation of Dillon’s Rule in the state.14 While it does appear that increased local preemption legislation has a correlative relationship to states where Republicans control the legislative and executive branches,15 causation cannot be so easily established. John Wilkerson, General Counsel for the Arkansas Municipal League, noted during an April 2023 presentation to the International Municipal Lawyers’ Association that citizens who unsuccessfully ask for a change at the local level will often turn to the state, ostensibly finding that approach easier than further engagement with local leaders or even campaigning for change in local leadership. Wilkerson also suggested that when businesses suspect (continued on page 12)

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Adrienne.BennettCluff@ nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

APR/MAY GOLDEN OLDIES

Congratulations to Peter F. Klett III of Dickinson Wright for correctly identifying the individuals in last issue’s photo!

Individuals are listed from left to right: Jackie Dixon, Karl Dean, and Lela Hollabaugh.

2023 Nashville Pride Parade

Thank You to Our Sponsor 10

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

BACKGROUND CHECK

Judge Cindy Chappell | Bart Pickett

Of the large crop of new judges elected last year, Cindy Chappell has the distinction of being the last entrant to the ring. When Judge Fishburn announced his retirement, any hopeful contender had less than 24 hours to qualify. Chappell recalls her mentor and colleague, Hal Hardin, breaking the news and asking if she wanted to run. At 5 pm she thought no but reversed course by 11 pm. She had twice applied for a judicial appointment but had never considered a run for office. Looking back, the short timeline worked in Chappell’s favor as if she had longer, she probably would have talked herself out of it. Luckily for Davidson County, she stayed in and became the judge of Davidson County Criminal Court, Division VI. Chappell, the oldest of 3, hails from the West Tennessee town of McKenzie. Growing up her father was the head coach of the football team and her mother, who stayed at home in the early years, went back to school to become a teacher and graduated college the same year that Chappell graduated high school. In high school, Chappell played basketball, softball, was in the color guard, and even managed the football team.

Chappell had always been interested in Rhodes College in Memphis because her paternal grandparents had met there as students. Rhodes offered Chappell an academic scholarship which solidified her choice.

At Rhodes, she played soccer and majored in Psychology. At the time, she wanted to go into the FBI or law enforcement. Following a chance encounter with the LSAT, she scored well and got a scholarship to Memphis Law which changed her path.

During her third year in law school, Chappell did a clerkship for the Shelby County Criminal Court judges. Following graduation in 1993, she accepted a job offer from Russell X. Thompson, a solo practitioner in Bolivar, TN. For two years Thompson took the time to explain the basic mechanics of a law practice. This one-on-one experience was invaluable and gave her a good base to start her career.

Following an invitation from her future husband, Jack Brown, Chappell moved to Nashville in 1995. Since she had no job lined up, she started taking criminal appointments from the jail docket and enjoyed practicing criminal defense. For most of her practice, she was a solo practitioner, but she benefited from a long association with Dodson Parker & Behm, which she loved.

The esteemed Margaret Behm would later agree to serve as Chappell’s treasurer.

A happenstance move to office space in 1999 led Chappell to meet Hardin who has had more influence on her career than anyone. Chappell and Hardin worked on many interesting cases together up until her election. Chappell practiced criminal defense in both state and

federal court. She also ended up doing quite a bit of family law in her career. She represented many clients in divorces, particularly lawyers.

As she approaches the end of her first year on the bench, Chappell has an even greater amount of respect for the judiciary. Every decision, even the seemingly small ones, can have a dramatic impact on a person’s life.

Chappell has appreciated the different rhythm of judging compared to practicing law, but she does miss meeting clients and learning their stories. Reviewing search warrant applications has been surprisingly interesting, and she is working to streamline the search warrant application process.

Chappell has been impressed with the level of preparation of the attorneys who appear in Division VI. She’s proud that Davidson County has that caliber of lawyers. Karen Barnes is Chappell’s Chief of Staff ensuring coordination between the office and the courtroom. During her relatively short tenure on the bench, Chappell has had 10 jury trials and several bench trials. She has learned a lot and continues to learn in her new role which she finds to be immensely fulfilling.

Chappell has two sons, Jackson (20) and Isaac (14). They enjoy exploring Nashville and attend Calvary United Methodist Church. n BART PICKETT was recently appointed as the State Trial Court Administrator for the Twentieth Judicial District where he oversees the operations of the 18 State Trial Courts. Prior to that, he practiced as a trial attorney for Liberty Mutual Insurance Company.

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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Editorial | Let Me Stop You Right There

their plans don’t align with local community interests, it is easier to lobby for statewide action than to take the more traditional approach of adjusting plans, working with local residents, and, failing all else, accepting defeat as part of the democratic process.16 Certainly Nashville’s experience with “the Amp”—a proposed dedicated bus transit lane for the city—bears out the idea that locals can find it easier to influence legislation from the top down. In 2012, the Amp was unveiled by local leaders, with $7.5 million in design and preliminary work approved by the Metro Council. In the face of contentious debate within the community, certain residents sought intervention from state lawmakers. By mid-2015, state legislation had all but killed the Amp, making any such project subject to state approval. Local leaders soon abandoned the project.17 The recent fairgrounds legislation aimed at Nashville would seem to support arguments that businesses will “forum shop” for friendly legislators. Bristol Motor Speedway wanted to establish NASCAR racing on the grounds of the current Nashville Fairgrounds—a proposal endorsed by the Mayor. Community reaction was mixed, and local scuttlebutt was that there were not enough Metro Council votes to secure the deal, since a charter provision required a two-thirds majority vote to approve the necessary demolition on the site. That issue was resolved when State Representative Jon Lundberg (from Bristol) proposed successful legislation intended to invalidate

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Metro’s Charter provision, reducing the votes needed. The bill became law on May 5, and, by May 26, legislation approving the deal was in front of the Metro Council.18 As evidenced by Nashville’s experience, preemption is not as simple as party politics, and there appears to be no ideological purity from cheerleaders or detractors. The Era of Preemption is a political approach to the legal puzzle of determining how governmental institutions share and balance powers. As the Tennessee Supreme Court reminded us in 2001, the concept of preemption is a doctrine;19 it has no inherent positive or negative value. At the end of the day, preemption is a tool wielded in the implementation of policy preferences that exists in tension with the overlapping jurisdictions of state, local, and federal government. If nothing else, this means that the Era of Preemption is one that will doubtless keep Middle Tennessee’s lawyers engaged—figuratively and literally—for years to come.

CANDI HENRY serves as Chief Legal Counsel for the Greater Nashville Regional Council, which means she spends an inordinate amount of time misspelling both counsel and council. GNRC is a governmental entity comprising 13 counties and more than 50 cities in upper Middle Tennessee.

Endnotes 1

2023 Tenn. Pub. Ch. 454.

2

2023 Tenn. Pub. Ch. 410; 2023 Tenn. Pub. Ch.488.

3

2023 Tenn. Pub. Ch. 21.

4

2023 Tenn. Pub. Ch. 430.

5

2023 Tenn. Pub. Ch. 364.

6

See, e.g., Cochrane, Emily. “Nashville Sues To

Block Law That would Shrink its Council by Half,” N.Y. Times (Mar. 13, 2023), https://www.nytimes.

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

com/2023/03/13/us/politics/nashville-council-lawsuit.html; Stephen Elliot, “Metro Sues Over State’s Racetrack Changes,” Nashville Scene (May 24, 2023),

https://www.nashvillescene.com/news/

pithinthewind/metro-sues-over-state-s-racetrackchanges/article_556adc6c-7591-598d-9398-be8dbe493e4d.html; Stephen Elliot, “Metro Sues State Again,” Nashville Scene (June 12, 2023), https:// www.nashvillescene.com/news/pithinthewind/metrosues-state-again/article_e7583ce5-1661-5b5a-8da726175f2324ae.html.

7

2023 Tenn. Pub. Ch. 453.

8

2023 Tenn. Pub. Ch. 240.

9

2023 Tenn. Pub. Ch. 398.

10

2023 Tenn. Pub. Ch. 390.

11

National League of Cities “City Rights in an Era of

Preemption: A State-by-State Analysis 2018 Update,” https://www.nlc.org/resource/city-rights-in-an-era-ofpreemption-a-state-by-state-analysis/.

12

Id. at 1.

13

S. Constructors, Inc. v. Loudon County Bd. of

Educ., 58 S.W.3d 706 (Tenn. 2001).

14

Id. at 714.

15

“City Rights,” at 3.

16

John Wilkerson, General Counsel, Arkansas Mu-

nicipal League, CLE Presentation at International Municipal Lawyers’ Association 2023 Mid-Year Conference (April 23, 2023).

17

Joey Garrison, “Nashville MTA: Amp is dead,” The

Tennessean (Jan. 22, 2015), https://www.tennessean.com/story/news/local/2015/01/22/nashville-mtaamp-dead/22172861/.

18

See Connor Daryani, “State Advances Legislation

to Shake up Path to Racetrack Overhaul,” Nashville Scene, (Mar. 22, 2023), https://www.nashvillescene. com/news/pithinthewind/state-advances-legislationto-shake-up-path-to-racetrack-overhaul/article_363fcd2a-c8f3-11ed-a479-0ba5c6b9f0e5.html;

2023

Tenn. Pub. Ch. 364; Eli Motycka, “Mayor’s office moves on NASCAR deal,” Nashville Post, (May 26, 2023), https://www.nashvillepost.com/politics/metro/ mayor-s-office-moves-on-nascar-deal/article_cbbfd30c-70d9-54f7-8818-5946936e39b6.html.

19

See S. Constructors, Inc., 58 S.W.3d at 712. n

Editorial | Mekesha Montgomery & Seth Granda

#MeToo at Work: A Paradigm Shift Through Federal Legislation The #MeToo movement has left an indelible imprint on American society over the last six or so years. In addition to the oft cited Harvey Weinstein case,1 public discourse surrounding the issues of sexual assault and sexual harassment in the workplace increased in large part due to the events involving disgraced Fox News president Roger Ailes and his notorious mistreatment of numerous female coworkers including most notably on-air hosts Gretchen Carlson and Megyn Kelly.2 Out of that discourse, two key pieces of federal legislation were born: the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”)3 and the Speak Out Act (“Speak Out”).4 These federal statutes have together shifted the balance of power into the hands of employees alleging sexual assault and sexual harassment, giving them the keys to the courthouse and the ability to publicize their accusations in many cases where they previously would have been kept silent by arbitration and nondisclosure provisions and/or agreements.

THE EFAA The EFAA was proposed and passed with strong bipartisan support in early February 2022 before President Biden signed the Act into law on March 3, 2022.5 It amended the Federal Arbitration Act (FAA) and prohibits the forced arbitration of sexual assault

14

and harassment claims, opening the door for such claims to be brought in court, regardless of whether the complainant is bound by a mandatory arbitration provision. Rather than automatically rendering pre-dispute arbitration agreements or class/collective action waivers invalid and unenforceable, the EFAA permits any person or named representative of a class or collective action alleging sexual harassment or sexual assault dispute under federal, tribal, or state law to elect to invalidate such agreements. It also allows a plaintiff to seek to invalidate any agreement that would waive an employee’s right to participate in a class action claim based on such allegations.

Fundamentally speaking, the EFAA provides the alleged aggrieved party of sexual assault or sexual harassment with the power to decide the forum where they want to have their claims adjudicated: before a judge in court or behind closed doors before an arbitrator.

The EFAA applies to any claim of sexual harassment or assault under Federal, State, or tribal law that “arises or accrues on or after the date of enactment of [the] Act.”6 This means that a complainant can invalidate any pre-dispute arbitration agreement or class/collective action waiver even if it was executed prior to March 3, 2022. Notwithstanding, the EFAA does not allow a sexual assault and sexual harassment complainant to seek to invali-

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

(continued on page 16)

BILL & PHIL’S GADGET OF THE MONTH

Summer Gadgets | Bill Ramsey & Phillip Hampton

We absolutely love summertime with the backyard BBQs, softball tournaments, days at the beach, and lazy afternoons in a hammock. While it is prime time to unplug and get away from the office rat race, we still find a way to use technology to enhance our “unplugged” time. Call us tech junkies if you will; but we take some of our gadgets with us on summer vacation.

Here are some of our favorites: Bose Frame Smart Sunglasses: Whether we’re biking the Natchez Trace, running on the beach, or simply enjoying a rigorous hike in the mountains, we never leave our Bose Frame Smart Sunglasses behind. These high quality, stylish sunglasses also serve as an open ear Bluetooth audio source so we can listen to our favorite Spotify playlist or podcast as we go about our summer activities. With our smartphone in our back pocket, we can stream great sounding audio without putting an earbud or Airpod in our ear.

Our Bose sunglasses are an essential part of our summer vacation gear.

Portable Neck Fan: In the part of the country we’re from, it gets very hot and humid during the summer months.

Those backyard picnics can get quite toasty in the summer heat. We have found the perfect solution. The 8.8 ounce Portable Neck Fan sits unobtrusively around your neck and provides a nice breeze with its 72 wind outlets and twin-turbine air blades. It operates super quietly (but who’s going to notice anyway at a neighborhood block party); and it helps us keep our cool, literally.

Smart Grill: We’re probably late to the smart grill party as we have a penchant for old-fashioned charcoal grills (you know, the kind you have to light five times before the charcoal actually gets hot enough to cook). But we recently upgraded our old grill to a Master Built Gravity Series Digital Charcoal Grill + Smoker. Mind-blowing; world changing. This grill (and others like it), combines the old style of charcoal grilling with a digital temperature-setting dial that lets you control the temperature continuously throughout the grilling/smoking process. Once the meats are arrayed on the grill, we can simply control and monitor the cooking process from our smartphones (as we rest in a nearby hammock).

KuccHero Outdoor Bluetooth Speaker: Whether we are going to the beach or simply hanging out with the family in the backyard, we always take along our favorite Bluetooth speaker/LED lantern to enhance the atmosphere. The KuccHero Outdoor speaker fits the bill. You can buy one or a hundred and pair them together, creating a lush canopy of music over

your summer soiree along with atmospheric lighting. The speakers can stand alone, be mounted on a wall, or attached to a stake for a tiki torch effect. They are IPX5 water resistant; so, no worries if a rambunctious guest accidentally drops one in the pool.

Bird Buddy: Summer season is bird season; and we love to invite our feathered friends to our backyard bird feeder. The Bird Buddy Smart Hummingbird Feeder has taken our bird watching to the next level. The feeder comes equipped with a smart camera and microphone. We are notified via our smartphone app when we have guests arriving to feed. The camera captures a photo of our feathered guests and can classify the bird species via AI technology. Even better, with the optional solar roof on the bird feeder, the sun is our power source for all this technology.

Hiearcool Waterproof Phone Pouch: If your summer activity involves water (and whose doesn’t?), then you probably need to invest in some protection for your constant companion, your smartphone. Yes, it’s probably advisable to leave your phone on shore before you embark on a rollicking white water rafting tour; but how will your friends ever know the dangers you faced unless you chronicle it on Instagram? The dilemma is solved with the Hiearcool Waterproof Phone Pouch for your smartphone.

This see-through IPX8-rated phone bag and accompanying lanyard will allow you to keep your smartphone safe and dry as you take it with you on your water adventures this summer.

Frigidaire Countertop Nugget Ice Maker: And who doesn’t like a (continued on page 34)

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

15

Editorial | #MeToo at Work date a pre-dispute agreement if the alleged assault and/or harassment occurred prior to March 3, 2022. Further, the limitation on prohibiting an employee’s right to join a class action regarding cases of sexual abuse or sexual harassment would apply to waivers found in arbitration agreements and in any other employment agreements.

SPEAK OUT Following enactment of the EFAA, Congress passed the Speak Out Act (“Speak Out”), which President Biden signed into law on December 7, 2022.7 Speak Out cuts off an employer’s ability to utilize non-disclosure and/or non-disparagement agreements that would prohibit an employee (or former employee) from disclosing any allegations pertaining to sexual assault and/or harassment regardless of whether the disclosing employee was the actual target of the assault and/ or harassment. Speak Out was designed with the express intent of combatting sexual assault and harassment in a way that grants freedom of reporting and public disclosure on these topics.

Speak Out renders unenforceable any non-disclosure and/or non-disparagement clause that: (a) was entered into on or after December 7, 2022; (b) was entered into before a covered sexual harassment dispute and/or sexual assault dispute arose; and (c) requires the employee not to: (i) disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement related to a sexual assault dispute or a sexual harassment dispute; or (ii) make negative statements about another party that relates to the contract, agreement, claim or case. Speak Out by its terms applies to claims filed post-December 7, 2022, but it does not apply to non-disclosure and non-disparagement clauses executed in connection with disputes concerning 16

(continued from page 14)

claims filed before December 7, 2022.

CONCLUSION Despite the EFAA and Speak Out Act being in their legal infancy, each law has wide ranging implications not only in the workplace but also in the courts. While research has yielded no published cases citing the EFAA in the state or federal courts of Tennessee as of the time of this article’s preparation, there have already been at least four reported federal cases and at least one reported state case concerning the EFAA’s application in 2023 alone.8 Given the sheer estimates of employers who have utilized mandatory arbitration agreements and/or nondisclosure agreements prior to enactment of the EFAA and Speak Out, it is anticipated that this small but growing trend of suits in our fellow jurisdictions is an indication of what is to come, and counsel on both sides of the bar would do well to familiarize themselves with not only the operative provisions of both the EFAA and Speak Out but also the quickly developing body of case law interpreting them. n MEKESHA MONTGOMERY is the office managing partner of Frost Brown Todd LLP in Nashville, Tennessee, where she often serves clients in the role of outside general counsel and is the Chair of Frost Brown Todd’s Manufacturing Industry Team. Mekesha’s practice focuses upon representing management clients in a variety of labor and employment matters, including in the areas of union negotiations and arbitration and employment discrimination/wrongful discharge. Mekesha graduated from the University of Kentucky with honors where she was inducted as a member of Phi Beta Kappa academic honor society as well as the University of Kentucky’s College of Law where she served as Associate Editor of the Kentucky Law Journal.

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

SETH GRANDA is a Senior Associate with Frost Brown Todd LLP in Nashville, Tennessee, where he practices in the area of labor and employment law. Seth received his undergraduate degree with honors from Belmont University in 2012 where he was inducted as a member of Phi Alpha Theta history honor society before continuing on to graduate from Belmont University’s College of Law in 2016. Seth advises management clients in the manufacturing, health care, supply chain, and automotive industries, and he represents them in litigation and other proceedings in federal, state, and administrative forums throughout the United States.

Endnotes 1

Friedman, V. (2023, April 8). Lawsuit Accuses Former

Associate of Harvey Weinstein of Rape. The New York Times. https://www.nytimes.com/2023/04/07/style/saraziff-fabrizio-lombardo-rape.html.

2

Dockterman, E. (2019, December 16). The true story

behind Bombshell and the Fox News Scandal. Time. https://time.com/5748267/bombshell-true-story-foxnews/.

3

9 U.S.C. §§ 401–02 (West through P.L.118-6).

4

42 U.S.C. § 19403 (West through P.L.118-6).

5

David Horton, The Limits of the Ending Forced Arbitra-

tion of SexualAssault and Sexual HarassmentAct, YALE L.J. FORUM (June 23, 2022), https://www.yalelawjournal.org/forum/the-limits-of-the-ending-forced-arbitration-of-sexual-assault-and-sexual-harassment-act.

6

For those inclined to overlook the breadth of the EFA,

it should be noted that it is not limited to the employment context. It may be read to apply to independent contractors, patients, customers, and any other individual with whom a business might attempt to enforce mandatory arbitration. Therefore, any person who is bound by a pre-dispute mandatory arbitration agreement alleging sexual assault or harassment within the applicable time frame could theoretically invoke the EFA’s invalidation power.

7

Biden signs law curbing nondisclosure agreements

that block victims of sexual harassment from speaking (continued on page 24)

JUNE/JULY 2021 | VOLUME 21 | NO. 3

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FEAT U R E

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The Nashville Bar Journal is the Nashville Bar Association’s official bi-monthly magazine—published exclusively for NBA members—that delivers relevant and up-todate information to over 2,500 attorneys and legal professionals across the Nashville area. Published in both print and digital platforms, be sure to take advantage of this cost-effective opportunity to target Nashville’s legal market and increase your company’s visibility!

JUNE/JULY 2021 | VOLUME 21 | NO. 3

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. AUGUS T 14 | VIRTUAL SEMINAR

GAL/AAL TRAINING OVERVIEW Produced by the Estate Planning & Probate Committee Join Judge Hedrick & Judge McClendon as they speak about the current policies and procedures in their respective courtrooms. This seminar will provide training to anyone currently serving or who wish to begin serving as Guardian ad litem or Attorney ad litem.

PRESENTERS Hon. Andra Hedrick Hon. Amanda McClendon D E TA I L S Seminar ���������������������������������������������������������12:00 – 1:00pm Credit �������������������������������������������������������������������1.0 General Location �����������������������������������������������������������Virtual (Zoom) COST NBA Member (Attendance Only - No CLE Credit) ��������������$0 NBA Member (CLE Credit) ����������������������������������������������$35 Non-Member ��������������������������������������������������������������������$89

A U G U S T 16 | V I R TU A L S E M I N A R

ANNUAL CRIMINAL LAW LEGISLATIVE UPDATE OVERVIEW 2023 has seen major legislative changes to criminal law.

Learn more about changes to the criminal code sections broken out into the following topics: • RICO • DUI – Interlocks – BUI – Other Driving Offenses • Sex Offenses • Stalking • Kidnapping • Juveniles – Parentage – Abuse • Drugs • Assaults – Murder – Death Penalty • Sentencing – Parole – Bail – Community Corrections – Diversion • Expunction • Animals – Misc. Offenses/Defenses • Procedural Changes PRESENTERS Chelsea Curtis, TN District Public Defenders Conference DETAILS Seminar ������������������������������������������������������2:00pm – 3:00pm Credit �������������������������������������������������������������������1.0 General Location �����������������������������������������������������������Virtual (Zoom) COST NBA Member (Attendance Only - No CLE Credit) ��������������$0 NBA Member ��������������������������������������������������������������������$35 Non-Member ��������������������������������������������������������������������$89

18

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. AUGU ST 2 9 | LIVE SEMINAR

S E P TE M B E R 15 | H Y B R I D S EMIN A R

YOUNG LAWYERS’ LUNCH WITH THE JUDGES SERIES: TIPS AND TRICKS FROM THE BENCH

DIVERSITY AND EQUITY ISSUES IN LEGAL EDUCATION

OVERVIEW Lunch with the Judges – a series of CLEs aimed to help connect new attorneys with judges in their practice field.

Hear from the judges for tips and tricks on avoiding common pitfalls they see from the bench, including while submitting briefs, arguing motions, and other stages of litigation. As an added bonus, there will be a meet and greet with the Judges following the CLE. The first CLE in the series is specifically targeted to the Family Law and Probate practice areas. Attending is a great way to network with your colleagues who practice in these areas as well as the judges deciding your cases! Lunch will be provided.

PRESENTERS

THE LSAT REQUIREMENT, BAR EXAM, AND THE AFTERMATH OF THE SFFA DECISION OVERVIEW Co-Produced by the Race & Equity Committee and the Diversity Committee Join us for a panel discussion regarding potential diversity and equity issues with the requirement of the LSAT for matriculation to ABA-accredited law schools and the Bar Exam.

Panelists will also discuss the potential fallout from the Supreme Court’s decision to strike down affirmative action plans in higher education in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

PRESENTER

Hon. Andra Hedrick

Debbie Farringer, Belmont University

Hon. Stanley Kweller

Matthew Patrick Shaw, Vanderbilt Law School

DETAILS

D E TA I L S

Seminar ��������������������������������������������������11:30am – 12:30pm

Seminar ���������������������������������������������������������12:00 – 2:00pm

Credit �������������������������������������������������������������������1.0 General Location ����������������������������������������Justice A.A. Birch Building COST NBA Member ��������������������������������������������������������������������$35 Non-Member ��������������������������������������������������������������������$89

Credit �������������������������������������������������������������������2.0 General Location ����������������������� Hybrid - Virtual (Zoom) & NBA Office COST NBA Member (CLE Credit) ����������������������������������������������$95 Non-Member ������������������������������������������������������������������$189 AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

19

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. S E P T E MBER 2 6 | LIVE SEMINAR

GETTING THE TN SUPREME COURT TO HEAR YOUR CASE: APPLICATIONS FOR PERMISSION TO APPEAL

Oct 6 | Government Practice Institute

OVERVIEW

Oct 24 | Family Law Institute

Produced by the Appellate Practice Committee An important first step in litigating most cases before the Tennessee Supreme Court is convincing the Court to grant review in the first place. As primarily a law-development Court with mostly discretionary jurisdiction, the Tennessee Supreme Court hears a relatively small number of important cases each year. During this seminar, Justice Sarah K. Campbell will discuss some of the criteria the Justices consider when deciding whether to grant review as well as other tips for practicing before the Tennessee Supreme Court.

Lunch will also be provided prior to the seminar, thanks to Sherrard Roe Voigt & Harbison.

PRESENTER Justice Sarah K. Campbell D E TA I L S Seminar ���������������������������������������������������������12:00 – 1:00pm Credit �������������������������������������������������������������������1.0 General Location ���������������������������������������������������������������� NBA Office COST NBA Member (Attendance Only - No CLE Credit) ��������������$0 NBA Member (CLE Credit) ����������������������������������������������$35 Non-Member ��������������������������������������������������������������������$89

20

UPCOMING SEMINARS

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

Oct 26 | Estate Planning & Probate Institute Nov 8 | Employment Law Institute Nov 28 | Business Law Institute Dec 1 | Entertainment, Sports & Media Law Institute Dec 12 | Chancery Court Institute Dec 12 | Circuit Court Institute Dec 20 | Government Practice & Professionalism Institute

Editorial | Lynn Ridgeway Zehrt

Understanding the New Pregnant Workers Fairness Act Lynn Ridgeway Zehrt wrote an article for the Nashville Bar Journal’s July 2014 issue, titled Resolving the Great Divide in Pregnancy Discrimination. This article serves as a companion piece about the new federal Pregnant Workers Fairness Act. Congress recently enacted legislation requiring most private and public employers to provide reasonable workplace accommodations for the known limitations of their pregnant workers.1 This new statute, the Pregnant Workers Fairness Act (“PWFA”), garnered bipartisan support in Congress and received endorsements from over 230 organizations including the U.S. Chamber of Commerce, the Society of Human Resource Management, and the National Organization for Women.2 The PWFA contains several new substantive requirements that are designed to “eliminate discrimination and promote women’s health and economic security.”3 First, the statute requires private employers with fifteen or more employees to grant reasonable accommodations to an employee or applicant whose ability to perform the essential functions of a job is limited by pregnancy, childbirth, or related medical conditions.4 The PWFA also forbids employers from forcing pregnant workers to take leave rather than providing them with a reasonable accommodations that would allow them to continue to work while pregnant.5 Additionally, the PWFA directs employers to engage in an interactive process with pregnant workers about possible accommodations,6 and it prohibits employers from retaliat-

ing against workers who engage in statutorily protected conduct.7 Moreover, the PWFA is a hybrid statute, incorporating portions of both Title VII of the Civil Rights Act of 1964 (“Title VII”), as well the Americans with Disabilities Act (“ADA”).8 First, the PWFA incorporates Title VII’s remedial provisions.9 These provisions expressly permit plaintiffs to recover capped compensatory and punitive damages, as well as other remedies, against employers who intentionally violate the PWFA’s substantive provisions. Second, the PWFA does not define the term “reasonable accommodations,” but the statute expressly incorporates the ADA’s definition.10 Also, the House Committee on Education and Labor’s official report recommending the PWFA offered several examples of reasonable accommodations, including “[the ability to sit or drink water]; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional breaktime to use the bathroom, eat, and rest; excusing the worker from strenuous activities.”11 Third, the PWFA provides employers with the flexibility to refuse a requested accommodation when the employer establishes that such accommodation poses an undue hardship on the employer.12 Here again, the PWFA incorporates the ADA’s definition of “undue hardship” and considers whether the accommodation would cause the employer to incur significant difficulty or expense.13 When enacting the PWFA, Congress considered the limited ability to obtain pregnancy accommodations under other federal (continued on page 22)

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

21

Editorial | Understanding the New Pregnant Workers Fairness Act laws.14 Specifically, both the ADA and Title VII provide only limited protection to pregnant workers, so most pregnant workers still lack uniform access to reasonable workplace accommodations without additional legislation.15 For instance, under the ADA, pregnancy historically was not considered a disability by either the Equal Employment Opportunity Commission (“EEOC”) or most federal courts because it was deemed a normal and temporary medical condition.16 Even after the enactment of the ADA Amendments Act of 2008 (“ADAAA”), which sought to expand coverage to individuals with disabilities, the EEOC continued its pregnancy exclusion, explaining that “pregnancy itself is not a disability, [although] pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.”17 Thus, only certain complications arising during pregnancy qualified as disabilities under the ADAAA, and even this limited protection was uncertain because many courts remained reticent to extend the law’s protections to pregnancy-related complications.18 Nor does Title VII, as amended by the Pregnancy Discrimination Act of 1978 (“PDA”), impose an affirmative obligation on employers to provide reasonable accommodations to most pregnant workers.19 Rather, the PDA primarily forbids discrimination against pregnant workers and requires employers to treat “women affected by pregnancy, childbirth, or related medical conditions … the same for all employment-related purposes … as other persons … similar in their ability or inability to work.”20 Courts have explained that this provision only mandates equal treatment, not preferential treatment, for pregnant workers.21 Thus, the PDA would only require an employer to accommodate a pregnant worker if the employer provided an accommodation to a nonpregnant employee who was “similar in their ability or inability to work.”22 For years, the federal courts of 22

appeals were divided over the application of this comparative standard, namely which employees would serve as valid comparators to pregnant workers for purposes of obtaining a reasonable accommodation under the PDA.23 Moreover, the Supreme Court’s decision in Young v. UPS did not definitively clarify which nonpregnant workers were relevant comparators, explaining only that the identification of a comparator should not be “onerous” on workers and does not require them to be similar “in all but the protected ways.”24 A study conducted on reasonable accommodation cases after the Young decision concluded that “‘over two-thirds of workers lost their pregnancy accommodation cases [under the PDA]. Nearly seventy percent of those losses can be traced to courts’ rejection of women’s comparators or inability to find comparators.”25 Ultimately, Congress enacted the PWFA to provide “clarity in the current legal framework … [and] clear guidance to both workers and employers” thereby “reducing the potential for costly litigation.”26 Moreover, Congress explained that broadening access to pregnancy accommodations was an important national issue because “[w]hen pregnant workers do not have access to reasonable workplace accommodations, they are often forced to choose between their financial security and a healthy pregnancy.”27 Approximately thirty states, including Tennessee,28 previously enacted pregnancy accommodation statutes,29 but beginning June 27, 2023, the PWFA will ensure more uniform access to reasonable accommodations for pregnant workers throughout the country.30 n

(continued from page 21)

tion, and her J.D. from the University of Alabama School of Law graduating magna cum laude. Professor Zehrt teaches a variety of courses at Belmont Law, including Civil Procedure I and II, Evidence, Professional Responsibility, Employment Law, and Employment Discrimination, and she regularly publishes scholarship in the labor and employment law area. Professor Zehrt extends her appreciation to her research assistant, Jacob Greene, for his contributions to this article.

Endnotes Consolidated Appropriations Act, 2023, Pub. L. No.

1

117-328, Div. II, §§ 101-109, 136 Stat. 4459, 6084-89 (West 2022) (hereinafter “Pregnant Workers Fairness Act”).

2

See H.R. REP. NO. 117-27, pt. 1, at 5-8 (2021).

3

Id. at 1.

4

Pregnant Workers Fairness Act §§ 102(2)(B)(i),

102(3)(A), 103(1).

5

Id. § 103(4).

6

Id. § 103(2).

7

Id. § 104(f).

8

See Civil Rights Act of 1964, Pub. L. No. 88-352,

§ 701(b) (1964) (hereinafter, “Title VII”); Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2 (1990).

9

Pregnant Workers Fairness Act § 104(a)(1)-(3).

10

Id. § 102(7).

11

See H.R. REP. NO. 117-27, pt. 1, at 22.

12

Pregnant Workers Fairness Act § 103(1).

13

Id. § 102(7).

14

See H.R. REP. NO. 117-27, pt. 1, at 19–21.

15

See generally id. at 5–21.

Lynn Ridgeway Zehrt, A Special Delivery: Litigating Pregnancy Accommodation Claims After the 16

Supreme Court’s Decision in Young v. United Parcel Service, Inc., 68 RUTGERS U. L. REV. 683, 689–90, 709 (2016) (discussing the historical interpretation of whether pregnancy qualified as a disability under the

LYNN RIDGEWAY ZEHRT is an Associate Professor of Law at Belmont University College of Law. Professor Zehrt earned her LL.M. from Georgetown Law Center graduating with distinc-

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

Americans with Disabilities Act).

17

cy

Fact Sheet for Small Business: PregnanDiscrimination,

PORTUNITY

U.S.

COMM’N,

EQUAL EMP.

OP-

https://www.eeoc.

gov/laws/guidance/fact-sheet-small-busi(continued on page 32)

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound Governor Lee was expected to convene on August 21, 2023. Here’s to hoping our legislative friends had some success in their efforts to reform Tennessee’s laws regarding access to firearms in the aftermath of the Covenant School shooting. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

“If you want to run with the big dogs, you have to get off the porch.”

Regular Election. The charter for the Metropolitan Government of Nashville and Davidson County establishes a regular election every four years for the offices of Mayor, Vice-Mayor, and the forty Council positions. August 3, 2023 was the regular election. The charter also requires a candidate to receive a majority of the votes cast or face a runoff six weeks later. The runoff election for this year is September 14. A wag of the tail in gratitude for all the candidates who got off the porch and summoned 25 humans who are registered voters to sign their nominating petitions to get their names on the ballot.

State Representative Bill Beck.

Bill Beck, age 61, died unexpectedly on Sunday, June 4. District 51 in Davidson County that Bill represented covers a part of downtown, part of East Nashville, a part of Donelson, and Madison. Bill was first elected in 2015 when Mike Turner decided not to seek reelection. Bill was a Madison guy who loved the community he grew up in. He received his B. A. degree from Belmont University and his J.D. degree from the Nashville School of Law. He practiced law at his family law firm, Beck and Beck in

Madison with his mom. He was respected on both sides of the political aisle and was one of the few Democrats in the House that could still sponsor and pass a bill in body where Republicans hold a significant majority of the seats. Bill and his booming laugh will be missed.

Special Elections. Bill Beck’s death left a vacancy, and the Metropolitan Council has appointed Anthony Davis, a former Council Member from 2011-2019 to fill the seat until elections can be held. The Democratic primary election to fill the slot was August 3 with Anthony Davis facing Aftyn Behn. The winner in the Democratic primary will face Republican David Hooven and Independent Annabelle Lee in the September 14 general election. The district is staunchly Democratic. Former State Representative Timothy Hill of Washington County has prevailed in his special primary election contest as have Justin Jones of Davidson County and Justin Pearson in Shelby County. Each of these three primary winners was expected to prevail in the August 3 special general elections.

Pesky Deadlines. The timing required to get this august publication to print prevents us from barking about the Extraordinary Session of the General Assembly that AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

23

Editorial | #MeToo at Work

(continued from page 16)

harassment dispute); Hodgin v. Intensive Care Consortium, Inc., No. 22-81733CV, 2023 WL 2751443 (S.D. Fla. Mar. 31, 2023) (EFAA did not apply because plaintiff’s dispute arose at the time of filing EEOC charges prior to EFAA enactment); Johnson v. Everyrealm, Inc., No. 22 CIV. 6669 (PAE), 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023) (entire action was exempted from arbitration under the EFAA by virtue of having plausibly pleaded claims for sexual harassment under New York City Human Rights Law (NYCHRL)); Yost v. Everyrealm, Inc., No. 22 CIV. 6549 (PAE), 2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023) (EFAA did not apply because sexual harassment claims were not plausibly pled even under NYCHRL’s more lenient “unwanted gender-based conduct” standard); Walters v. Starbucks Corp., 623 F. Supp. 3d 333 (S.D.N.Y. 2022) (EFAA did not apply because claims arose or accrued prior to EFAA enactment); and Murrey v. Superior Ct., 87 Cal. App. 5th 1223, 304 Cal. Rptr. 3d 439 (2023) (EFAA did not apply retroactively to case filed prior to statutory enactment). Authors’ note: numerous unreout. (2022, December 7). PBS NewsHour. https://www.pbs.org/newshour/politics/

ported federal cases are omitted from this citation due to word count limitations.

biden-signs-law-curbing-nondisclosure-agreements-that-block-victims-of-sexualharassment-from-speaking-out.

8

Mera v. SA Hosp. Grp., LLC, No. 123CV03492PGGSDA, 2023 WL 3791712

(S.D.N.Y. June 3, 2023) (invalidating arbitration agreement as to plaintiff’s sexual

Free. Anonymous. Confidential.

Local: (615) 741-3238 Toll Free: (877) 424-8527 www.tlap.org 24

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

barBITES | Summer Geyer, Burr Forman ARTICHOKE BRUSCHETTA Ingredients 1 jar (6.5 ounce) Artichoke Hearts, drained and chopped ½ cup grated Romano Cheese ½ cup finely chopped Red Onion 5 tablespoons Mayonnaise 4 ounce package Diced Pancetta ½ cup Sun Dried Tomatoes Chives, finely chopped, as garnish French baguette, one, cut into 1/3 inch thick slices Olive oil

Directions

Pan fry pancetta until crispy, then remove from pan, leaving drippings Pan fry artichoke hearts on medium high in pancetta drippings for 2-3 minutes In a medium bowl, mix Artichoke Hearts, Romano Cheese, Red Onion, Mayonnaise, Pancetta, and Sun Dried Tomatoes Arrange baguette slices in a single layer on a large baking sheet and drizzle with olive oil.

Then broil until lightly browned.

Turn baguette slices over and top with equal amounts of the artichoke heart mixture.

Broil until toppings are bubbly and lightly browned, around two minutes.

AUGUST/SEPTEMBER 2023 | NASHVILLE BAR JOURNAL

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31

Editorial | Understanding the New Pregnant Workers Fairness Act

(continued from page 22)

Mark Your Calendar

nesses-pregnancy-discrimination

(last

visited

Mar.

11,

2023).

18

See H.R. REP. NO. 117-27, pt. 1, at 19-20.

19

Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (2012).

20

Id.

21

See e.g., Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994) (de-

claring that the PDA allows an employer to “treat pregnant women as badly as they treat similarly affected but nonpregnant employees”); Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 207 (5th Cir. 1998) (“[M]ost courts have held that the PDA does

August 18 | 25th Annual Carbolic Smoke Ball @ Anzie Blue

August 29 | Reception for Justice Sharon Lee @ Nashville School of Law

not impose an affirmative obligation on employers to grant preferential treatment to

September 14 | YLD Mural Unveiling

pregnant women.”).

@ Tennessee Justice Center

22

42 U.S.C. § 2000e(k).

23

Lynn Ridgeway Zehrt, Resolving the Great Divide in Pregnancy Discrimination,

14 Nash. B.J. 6, 7, 14 (July, 2014).

24

Young v. United Parcel Serv., Inc., 575 U.S. 206, 228 (2015) (citations omitted).

25

See H.R. REP. NO. 117-27, pt. 1, at 16 (internal citations omitted).

26

Id. at 11, 31.

27

Id. at 5.

28

Tennessee Pregnant Workers Fairness Act, Tenn. Code Ann. § 50-10-101, et seq.

(2020).

29

September 28 | NBA Member Picnic @ Walk of Fame Park

October 21 | YLD 20th Annual DISCO Race Judicata @ Edwin Warner Park

See Nat’l P’ship for Women & Fam., Reasonable Accommodations for Pregnant

Workers: State and Local Laws 1 (April 2022), https://www.nationalpartnership. org/our-work/resources/economic-justice/pregnancy-discrimination/reasonable-accommodations-for-pregnant-workers-state-laws.pdf

[https://perma.cc/GW6S-

November 16 | Fall Memorial Service @ Downtown Presbyterian Church

7J2C] (“Thirty-one states, including the District of Columbia, and four cities have passed laws requiring some employers to provide reasonable accommodations to pregnant workers.”).

30

Pregnant Workers Fairness Act § 107(a)(1) (clarifying that the PWFA does

not invalidate any State Law that provides “greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions”).

32

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

December 6 | Annual Meeting & Banquet @ Music City Center

Visit Nashvillebar.org/Calendar for a full list of events

Hearsay | Honors & Awards, On the Move, Firm News HONORS & AWARDS

been a member of the and lawyers from underrepresented firm since January of groups, including people of color. n 2015. He is an active litigator in both state and federal courts LAWYER REFERRAL with a strong em& INFORMATION phasis on defending individuals and SERVICE businesses in complex civil actions.

Leadership Franklin has selected Stites & Harbison, PLLC attorney Lauren Paxton Roberts to join its 2023-24 class. Participants are chosen based on their leadership skills and community involvement.

Baker Donelson has Roberts is a Member (Partner) of Stites & launched an Artificial Harbison based in Franklin and Nashville, Intelligence (AI) Team, Tenn. She concentrates her practice in a multidisciplinary the areas of business and commercial litgroup of attorneys who igation, with a focus on financial services have extensive expeand professional malpractice. She is a rience with AI-based technologies and member of the Business Litigation and industry-specific experience.

Led by Anthe Torts & Insurance Practice groups. drew J. Droke, CIPP/US, a shareholder in the Firm’s Nashville office, Baker DoON T H E MOVE nelson’s dedicated AI Team is composed The law firm of Gullett of attorneys from multiple practices Sanford Robinson & across the Firm, including Technology; Martin PLLC (GSRM Data Protection, Privacy and CyberseLaw) is pleased to an- curity; Intellectual Property; Labor & Emnounce the addition of ployment; Health Care; and Advocacy. All Gabriel B. Ragsdale members of the AI Team regularly work to the firm as an associate attorney. with companies across industry sectors Ragsdale is a member of the Litigation in a range of matters, such as transacand Labor and Employment sections at tional, labor and employment, regulatory, GSRM Law. His practice concentrates compliance, and litigation.. on complex corporate and commercial Bradley Arant Boult litigation matters before state and federal Cummings LLP is courts in Tennessee and across the counpleased to announce try. Before joining GSRM Law, Ragsdale that Nashville partner practiced as an associate with Bayard, Nathan S. Harris has P.A. in Wilmington, Delaware. In his Delbeen named a recipiaware practice, he focused on complex ent of the 14th Annual Emerging Leader litigation before the Delaware Court of Chancery and the Delaware Superior Awards by The M&A Advisor for his notaCourt’s Complex Commercial Litigation ble accomplishments in business and his service to the community.

Division.

F I RM NEWS The law firm of Brewer, Krause, Brooks, Chastain & Meisner, PLLC is pleased to announce that the firm has added attorney Steve Meisner to the firm’s name effective April 17, 2023. Meisner has

For the seventh consecutive year, Baker Donelson has been named to Seramount’s prestigious list of “Best Law Firms for Women & Diversity,” which honors the top 50 firms that utilize best practices in recruiting, retaining, promoting, and developing women lawyers

Are you looking for another avenue for revenue and referrals, specifically those tailored to your practice area?

If so, the NBA Lawyer Referral & Information Service needs you. We are currently in need of attorneys who handle issues such as:

SSI Employment Evictions Immigration Workers’ Compensation For information on joining the LRIS, contact LRIS@nashvillebar.org. We look forward to hearing from you!

THE EXCLUSIVE REFERRAL SERVICE FOR THE NBA

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BILL & PHIL’S GADGET OF THE MONTH

Summer Gadgets | Bill Ramsey & Phillip Hampton

(continued from page 15)

cool iced drink in the summertime? Ice makers are nice, but very expensive if you have one of those fancy ones installed under the counter. This ice maker gives you restaurant quality nugget ice on your countertop for a much smaller price.

Just pour water into its reservoir and viola you have ice in 15 minutes. The bin holds 3 pounds of ice at a time; and it can produce 44 pounds of ice per day. Bill loves it when he makes Singapore Slings!

As you “unplug” this summer for a much-needed break from the office grind, don’t forget that technology can help you reach that summer nirvana that you’ve been dreaming of since January. Happy Summer.

Dial-A-Lawyer is held the first Tuesday of each month from 6:00–8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact Traci Hollandsworth at Traci.

Hollandsworth@nashvillebar.org.

Complimentary dinner is provided.

-Bill & Phil n

To learn more, visit NashvilleBar.org/DialALawyer

VOLUNTEER FOR DIAL-A-LAWYER Thank you to our May & June volunteers!

GINA CRAWLEY CHRIS HUGAN TOM LAWLESS OLIVIA AL-SADI

RESERVE OUR FACILITIES The NBA offers its conference rooms to be used for arbitrations, mediations, meetings, depositions, and other events for attorneys who need a convenient place to meet in downtown Nashville.

We have a spacious Conference Center and a smaller Board Room—both of which have WiFi access, a computer, and phone—available for your use. For more information, contact Vicki.Shoulders@nashvillebar.org

or

NashvilleBar.org/ReserveOurFacilities.

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2023

visit

Thank You for Your Membership!

The NBA Premier Membership recognizes those members who desire to demonstrate the utmost in commitment and support to NBA programs and services. Contact Vicki.Shoulders@nashvillebar.org for information on how to become a Premier Member.

PREMIER MEMBERS Gail Ashworth Bahar Azhdari Laura Baker Dan Berexa Michael Berman Mark Beveridge Hon. Joe Binkley Hon. Melissa Blackburn Charles Bone Dewey Branstetter Hon. Joe Brown Kenny Byrd Chris Cardwell Loy Carney Mark Chalos Will Cheek Jeff Cherry Daniel Clayton Seth Cline Todd Cole Chris Coleman Grover Collins John Day Joy Day Jackie Dixon Sherie Edwards Mandy Floyd Lora Fox Keith Frazier Barry Gammons Dave Garrison Andy Goldstein John Griffin Bill Harbison

Aubrey Harwell Trey Harwell Paz Haynes Lisa Helton Paul Housch Joseph Hubbard Jan Jennings Andrew Kaufman Jordan Keller Chris Kelly Jenny Kiesewetter John Kitch Bill Koch Irwin Kuhn Ed Lanquist Tom Lawless Wendy Longmire Kim Looney Christina Lopez Hon. Randal Mashburn Sam McAllester Hon. Amanda McClendon Hon. Carol McCoy Bob Mendes Margaret Moore Hon. Pat Moskal Phil Newman Paul Ney Andrew Noell David Parsons Greg Pease Andrea Perry Tracy Powell David Raybin

Ben Raybin David Ridings Nathan Ridley Worrick Robinson Chris Sabis Marie Scott Joe Shelton Kimberly Silvus Martin Sir Liz Sitgreaves Eric Smith Laura Smith Saul Solomon Mike Stewart Gerard Stranch Jim Stranch Chris Tardio Hon. Jim Todd Hon. Aleta Trauger Howard Vogel Michael Wall Tim Warnock Liz Washko Jim Weatherly Carolyn Wenzel Tom White Tom Wiseman Talley Wood Ed Yarbrough Bill Young Stephen Young Gulam Zade Stephen Zralek

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Thank you for supporting your local bar association!

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. To become part of NBA’s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

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