“Founders’ Plan” Amendment Could Change Selection Procedure for Tennessee Judges

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This fall Tennesseans will have the opportunity to vote on a proposed amendment to the Tennessee Constitution that would solidify how appellate judges are selected—a measure which has seen support from both sides of the aisle, including from Governor Bill Haslam and former Governor Phil Bredesen. Dubbed “The Founders’ Plan,” this amendment provides that the governor select the appellate judges who sit on the Tennessee Court of Appeals and Supreme Court.

Since 1971, the state’s appellate judges have been selected under legislation known as the “Tennessee Plan” or the “Missouri Plan,” whereby the governor chooses the judges from a list of recommendations furnished by the Judicial Nominating Commission. The chosen judges run unopposed in yes-or-no “retention elections” at the next general election and every eight years thereafter. (Note that this procedure only applies to the Tennessee Supreme Court justices and appellate court justices; trial court judges are elected directly by the voters in each judicial district.)

One perceived problem with the current system has to do with existing language in Article VI of the Tennessee Constitution calling for the “popular election of all judges.” Though the Supreme Court has ruled that retention elections under the Tennessee Plan does meet this standard, some critics disagree. The proposed amendment would render moot this controversy by altogether removing the popular elections provision. (more…)

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Reading into a Coincidence on the Anniversary of a Death

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"An Object of Beauty" by Steve Martin

In Steve Martin’s 2010 novel “An Object of Beauty,” which I am currently reading, John Updike makes a cameo appearance as a gentleman fellow-traveler on a train from New York to Washington D.C. with the story’s protagonist and a Milton Avery painting.

John Updike. By Dennis Kan, National Endowment for the Humanities [Public domain], via Wikimedia Commons

John Updike. By Dennis Kan, National Endowment for the Humanities [Public domain], via Wikimedia Commons

In the book, Updike posits that “Paintings are Darwinian” in that they drift toward money to survive. It is a brief but not subtle foreshadowing (I think).

He left the story as the train pulled into the station, but the encounter made me curious. When did Updike die? The answer: Five years ago today, January 27th in 2009.

My search also led me to this article and an interest read further on the man. It is a cool coincidence that the memory of a great fiction writer should be called to mind on the anniversary of his passing by his own (fictional) intervention in another author’s plot. I’d guess that Martin meant Updike’s appearance as a tribute, but today—from the reader’s point of view—it feels rather like a sort of literary reincarnation.

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Chicken Chic: Backyard Hens Now Allowed throughout Nashville

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Some home-cooked omelettes may taste a little fresher in Nashville, now that the Metro council has voted to allow property owners throughout the jurisdiction to keep small flocks of chickens in their back yards——2, 4 or 6 birds, depending on acreage. The ruling legitimizes leghorns (and other breeds, too, but we like the alliteration) in all 35 districts, except where otherwise restricted by Homeowner’s Associations.

hen by Zbigniew-Nowak for PhotoXpress

© Zbigniew-Nowak / PhotoXpress

In 2012, Metro passed an ordinance allowing residents to keep chickens for a $25 annual fee, but that legislation included an opt-out clause for a handful of districts (see Amendment 1)——an inconsistency that laid an egg with some policy critics. The Tennessean reported a 30-8 vote to strike down that opt-out clause at the January 21st council meeting, following a half-hour debate. However, this move also ruffled some feathers in districts 12, 20, and 28-33, as they must now allow city chickens despite opposition from constituents. (more…)

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A Decade of State-Sponsored Gambling: A Higher (Cost) Education Celebration

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“The story of the Tennessee’s Lottery is the story of much of my life,” writes Sen. Steve Cohen in a Tennessean column this week, marking the 10th anniversary of the state’s monopoly on legalized gambling. While acknowledging the program’s imperfection, Sen. Cohen takes (and probably deserves) responsibility for legislation leading to the lottery referendum passed in 2002.

Tennessee lottery tickets

The Tennessee Lottery has existed for 10 years; it joined Mega Millions in 2010.

The lottery is ostensibly designed to fund college scholarships, but it’s the state’s university system that really hits the jackpot—with the lottery serving as its public casino and a hidden regressive tax on the poor. Sen. Cohen’s narrative of the Tennessee Lottery ignores statistics that illustrates how bad a bet the lottery is for many of his constituents.

According to the Tennessee Lottery website, over $11.1 Billion has been gambled on lottery tickets, netting the government more than $2.89 Billion (nearly a 30% profit). A windfall to the state’s university system, much of this money has passed from households with lower incomes and education levels to benefit middle class families. This article cites a 2010 study that households with take-home incomes of less than $13,000 spent about nine percent of their income on lottery tickets, and non-college graduates spent more than three times more on the lottery than graduates. (more…)

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“Unconstitutional” Panel Recommends Appellate Judges Be Retained

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Davidson County Judge Hamilton “Kip” Gayden ruled last week that the Tennessee Judicial Performance Evaluation Commission, a panel set up to review the performance of Tennessee’s appellate judges, was unconstitutional because its members did not “approximate the population of the state with respect to race and gender,” as required by state law. However, Judge Gayden declined to issue an order to prevent the panel from meeting, which subsequently met on Friday and voted to give all appeals court judges and Tennessee Supreme Court justices a positive recommendation.

Currently, the nine-member panel is composed of seven white men, once white woman, and once black woman. Six of the members are lawyers, three of whom are also judges. Judge Robert Jones of Columbia, Tennessee chairs the panel and a man from Franklin, Tennessee sits as vice chair. The Speaker of the Tennessee House and the Speaker of the Tennessee Senate appoint four members each, with the final members appointed by both speakers. Since he has held office, Lt. Gov. Ron Ramsey has appointed only men to the panel. However, the Lt. Governor was disappointed with the panel’s most recent decisions and was quoted in article of the Knoxville News Sentinel as saying, “I had hoped the commissioners would have the political will to focus on facts, not personalities.”

The panel uses the evaluations on Tennessee’s appellate judges, which are based upon interviews, surveys, and other information, to draft reports in which each appellate judge is recommended for retention or replacement. Under the current appellate judge selection system in Tennessee, Tennessee voters ultimately decided whether to retain the judges in retention elections. However, judges that received positive recommendations stand for a yes-no retention vote, while judges that received negative recommendations may be challenged in a popular election.

The State of Tennessee announced through Attorney General Jim Cooper that it disagreed with Judge Gayden’s decision and would likely appeal.

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OMG: Public Records Come in All Formats—Including Texts and Tweets

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If you are a public official or employee in Tennessee and you are emailing, texting or otherwise communicating about public business, then those digital data–even if sent from or stored on personal devices–are considered “public records” and are open to inspection upon request.

text messages can be public records

Public records include digital data that pertains to city business—even that which is sent from a personal device.

The Tennessee Public Records Act defines “public record or records” as “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.” TCA 10-7-503 (emphasis added)

A recent 2013 Illinois Court of Appeals decision addressed text messages sent by some Aldermen from their personal cell phones during a council meeting. The bowed heads and keyboard finger clacking–not particularly decorous, but that’s another issue–piqued the curiosity of a reporter from the local News-Gazette, who filed a formal public records request, specifically stating: “Please note that this request applies both to city-issued and personal cellphones, city-issued or personal email addresses, and Twitter accounts.” Champaign’s FOIA officer contended that such content did not meet the definition of public record (under the Illinois statute), but an appellate court unanimously begged to differ. (more…)

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Prose and Cons Across the Pond: UK Public Prisons Adopt Expanded Literacy Program

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The founding of the charitable Shannon Trust organization which promotes literacy education among prisoners in England, Wales and Northern Ireland was fittingly funded by the royalties from a book: “Invisible Crying Tree” published by 1995 by Shannon Trust founder Christopher Morgan comprises an eye-opening pen pal correspondence between Morgan and Tom Shannon, a farmer from Sussex and convicted murderer in prison for life.

library of a Federal prison located on an island in Puget Sound

library of a Federal prison located on an island in Puget Sound (Public Domain via Wikimedia Commons)

The trust calls illiteracy a roadblock to “the rehabilitation journey” and advocates improving inmate literacy as a means to reduce the likelihood of repeat offenses, or recidivism.

With the help of volunteer staff, the organization sets up one-to-one peer mentoring reading programs through which prisoners teach other prisoners. The pilot program was launched in 2001 and within a year and a half had expanded to 30 other penitentiaries.

Now, according to reports by The Guardian, every public sector prison throughout England and Wales will administer the program through a business partnership between the Shannon Trust and the National Offender Management Service (NOMS).

(more…)

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What’s In A Name? Not A Compelling Reason for the State to Trump Parents

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a child's name is parents' choice

An East Tennessee judge who tried to prevent parents from naming their baby “Messiah” is now facing disciplinary charges for judicial misconduct.

An East Tennessee Judge raised debate earlier this year by refusing to allow parents to name their baby “Messiah,” reasoning that it would be against the child’s best interest to hold that name in the county, which has a large Christian population. A judge sitting over a higher court reversed her decision, finding that it did not comport with the Tennessee and United States Constitutions, under which natural parents have a fundamental right to direct the upbringing of their child. There must be a compelling reason for the State to step in and make parental decision in place of a child’s natural parents.

The East Tennessee Judge now faces charges filed by the Tennessee Court of the Judiciary, the board that regulates the disciplinary process for judicial misconduct. (more…)

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At Liberty to Publish for Now; Texas Supreme Court to Rule on Prior Restraint Case

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“We are witnessing today a tremendous and ominous expansion of preventive law in the area of civil liberties. More and more, our controls are being devised not as punishment for actual wrongful conduct, but with a view to preventing future evils by a series of restrictions and qualifications that seriously jeopardize freedom of expression.”

Thomas I. Emerson, “The Doctrine of Prior Restraint,” Yale Law School, 1-1-1955.

The Texas Supreme Court heard oral arguments this week on the issue of whether a judge may order the removal of an internet post that has been determined to be defamatory. Under Texas law, a plaintiff may only recover damages and is not entitled to injunctive relief to prohibit or remove defamatory statements.

In this case, Robert Kinney sued Andrew Harrison Barnes seeking only an order that would require Barnes to remove allegedly defamatory content that Barnes posted on the web (and other non-monetary relief). Barnes posted a “news item” on his website that Kinney “devised an unethical kickback scheme.” He had previously sued Barnes for damages, but dropped that case. The Trial Court and Court of Appeals of Texas both entered judgment for the defendant, Barnes, holding that the injunction sought would be an unconstitutional prior restraint on protected speech. (more…)

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You better Think (#Think!)—Think before you Tweet

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If you are active on social media—meaning that you post items to your Facebook page, Tweet or comment online—you need to be familiar with your employer’s personnel policy or your employment contract.

Tweet responsibly.

Be careful what you Tweet; there could be consequences. Image: By –Steindy (talk) 21:47, 16 September 2013 (UTC) [Public domain], via Wikimedia Commons

You may think what you do online “after hours” doesn’t affect your job, and/or that you are protected by the concept of “freedom of speech,” but whether an employee maybe disciplined or even fired for their “personal” internet activity is a complicated subject for employees and employers alike—not to mention for attorneys and courts. Because Internet activity is an emerging area of law (and an ever-evolving technology), many companies and government employers are updating and revising their personnel handbooks to address or anticipate further changes.

For example, the Kansas Board of Regents—a governing board of the state’s universities and public higher education institutions—recently updated their personnel policy to designate “improper use of social media” as an offense for which one could potentially be fired. According to this article by Slate, the policy revision was prompted by the Twitter tirade of a University of Kansas journalism professor who blamed the NRA for the fatal shooting of 12 people at Washington Navy Yard last September. Although an extreme example, this type of “discourse” is not uncommon; a quick survey of comments on almost any social or political issue will confirm. Despite the seeming pervasiveness of the political correctness ethic these days, most informal internet posts are neither politically (read: diplomatically) nor factually correct. (more…)

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