Nov 10, 2021 | Business Law, Civil Rights, Tennessee Supreme Court
By LUCAS L. JOHNSON II, Associated Press
Tennessee is now one of more than 20 states and the District of Columbia that have passed laws adding insulin to medications that school staff may volunteer to be trained to administer, according to the American Diabetes Association.
“It really just helps give an extra level of support to the children and their families by allowing trained personnel within the schools … to help out when there’s a need,” said Kristie Ryan, executive director of the American Diabetes Association in Tennessee.
About 208,000 Americans under age 20 are estimated to have diagnosed diabetes, according to the association.
In Tennessee and other states, tight budgets have thinned the ranks of school nurses. Even at schools with a nurse, the legislation’s proponents say, that nurse may have to travel to other schools without nurses.
Critics of the measure, such as the Tennessee Association of School Nurses, argue instead for bolstering the dwindling ranks of school nurses. They warn that something as routine as giving an insulin dose can require a medical background if the unexpected happens.
However, parent Freddie Martin of Franklin says he’s comfortable with someone being trained to administer insulin to his 10-year-old daughter, who has type 1 diabetes.
“It gives another layer of protection if the nurse is not around,” he said. “The more people that are trained … the better off everyone is.”
Under the law, school boards would have to approve the legislation, and parents would be able to opt in.
Another new law changes the way members of the state’s textbook selection panel are selected. The panel makes recommendations to the State Board of Education, and local school systems then choose which textbooks to adopt.
Criticism of the content of some books led to calls for a stronger public review process.
Under the new law, the House and Senate speakers and the governor would each make three appointments to the panel after Jan. 1. Currently, all but one of the 10 panelists is appointed by the governor. The legislation also requires that history and fundamental documents be taught.
Some said they don’t think the change is necessary.
“So far as I can tell, the textbook folks have always done a fine job and I really didn’t understand the need for the Legislature to get involved,” said House Democratic Leader Craig Fitzhugh of Ripley. “If politicians should be worried about anything in this arena, it should be making sure every child actually has a textbook.”
Other new laws will:
– Require marinas to install ground fault protection on electric lines, post notices about the danger of electrical leakage into waters surrounding a marina and require annual inspections by the Tennessee Fire Marshal’s office to ensure ground fault safety.
– As part of welfare eligibility, a parent or guardian with a child struggling in a school must attend two or more conferences with the teacher within a year to review the child’s status.
– Allow an ex-felon who has turned his or her life around to receive a certificate of employability, which gives businesses who hire the person protection from negligent hiring lawsuits.
James Settles founded a Nashville transitional housing program called Aphesis House, which helps former prisoners reintegrate into society. He said he supports the new law because it’s tough for them to get jobs when they’re released.
“They’ve paid their debt to society,” Settles said. “This gives them an opportunity to be taxpaying citizens.”
Nov 6, 2021 | Sixth Circuit
In an incident that puts the notion that all publicity is good publicity to the test, a hotel in Pigeon Forge recently lost an appeal before the Sixth Circuit–Grand Resort v. TripAdvisor–regarding what it says were defamatory claims made against it by the online travel review site TripAdvisor.
The case got its start back in 2011 when a hotel in Pigeon Forge, Tennessee earned the unfortunate distinction of the dirtiest hotel in America. The Grand Resort Hotel and Convention Center in Pigeon Forge managed to rank number one on the travel site’s annual list of dirty hotels. In its article concerning the dirty hotels, a number of scathing reviews were highlighted including one that mentioned that there was “dirt at least ½ inch thick in the bathtub.”
It goes without saying that such attention was not good for business and the hotel’s owner, Kenneth Seaton, subsequently went after TripAdvisor in court. Seaton sued the travel site, claiming that the article was defamatory, that it amounted to an invasion of privacy and that the claims in the story interfered with prospective business relationships.
The district court that heard the case dismissed the claim, agreeing with TripAdvisor that the list of “Dirtiest Hotels in America” amounted to protected speech and was not capable of being defamatory. The case was then appealed up to the Sixth Circuit, which issued its opinion earlier this month.
The Sixth Circuit determined that the hyperbolic language used and the generally loose tone of the list meant that it was not defamatory because the statements could not reasonably be interpreted as stating actual facts. The Court also agreed with the district court that the language was protected because it was an attempt by TripAdvisor to communicate the opinions of its users and not, as Seaton claimed, a statement of fact that Grand Resort was literally the dirtiest hotel in all of the United States.
Judge Karen Nelson Moore further noted how common such top 10 lists are online, things such as the most handsome, most trusted or dumbest individuals. Moore concluded that reasonable readers understand that the placement of a person or business on such a list is not a statement of fact and thus not the basis for a defamation claim. Given that the statement was not defamatory, Seaton’s other claims failed and the Sixth Circuit affirmed the district court’s motion to dismiss Seaton’s case.
To read the full opinion, click here.
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Sixth Circuit Discusses Requirements For Probable Cause
Sixth Circuit Allows Crack Cocaine Defendants To Be Resentenced In Light Of Fair Sentencing Act
Nov 2, 2021 | Supreme Court
The Judicial Nominating Commission met in Chattanooga today to review the 11 applicants for the Court of Appeals Eastern Section vacancy which serves 13 judicial districts in east Tennessee. The vacancy was created by the retirement of Court of Appeals Judge Herschel P. Franks.
After holding a public hearing and interview for each applicant, the Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:
Jerri S. Bryant
Chancellor
10th Judicial District
Athens, Tennessee
Michael A. Faulk
Solo Practice/State Senator
The Faulk Law Office
Church Hill, Tennessee
Thomas Radcliffe Frierson
Chancellor
3rd Judicial District
Morristown, Tennessee
Oct 30, 2021 | acca
In Re Estate of Thomas Chastain
The TN Court of Appeals reversed Chancellor Jerri S. Bryant, Polk County, and found that a will was validly executed. At issue was whether a document was a will at all. The document was not signed at the end, but the following document, the affidavit to the will, was properly signed. Chancellor Bryant found no will to exist without the appropriate signature on it; therefor an affidavit purporting to support the will was meaningless–if no will existed in the first place.
The Appeals Court saw it differently.
The unfilled-in space in the document is interesting. It seems plausible to us that this space was intended to contain the Deceased’s printed name and not his signature. If this is the case – and we believe it is – then the second page simply fails to have a line for the Deceased’s signature. We believe this bolsters our position, hereinafter stated, that the Deceased signed the aforesaid affidavit intending to sign the Will.
The case is interesting because of the historic rigidity held position that the courts have had regarding signatures. No signature typically means no will. A mark on a document intended as a signature is sufficient, but as the proof in this case showed, if the person making the will is capable of signing his name and has in fact signed his name elsewhere in the documents, then initials or a mark is not the same as a signature or valid. Here the court followed the intent of the man signing the affidavit–he intended to sign his will–and the Appeals Court found that sufficient. The man intended to have that document be his last will, that makes sense.
The puzzling question is how could a lawyer have drafted a will without a signature line at the end of the document. From the proof, the man sat and initialed the first page and signed the following document, the affidavit to the will.
Oct 29, 2021 | acca, Sixth Circuit
Edward Young received a mandatory 15-year prison sentence for the crime of possessing seven shotgun shells belonging to his widowed neighbor. At sentencing he was confronted with the harshness of the Armed Career Criminal Act (ACCA).
This sentence was upheld on appeal by the Sixth Circuit this week in an opinion that recognizes the severity of the sentence and questions the logic of a law that requires mandatory action by the court and prevents judicial discretion.
At the District Court, Judge Collier compared Young’s story to a Charles Dickens novel and noted, “a lot of people think these laws are unfair”. Nonetheless the court understood that precedent required the mandatory 15-year sentence.
On appeal Sixth Circuit Judge Stranch added: “we judges have a right-a duty even-to express criticism of legislative judgments that require us to uphold results we think are wrong. I therefore joined the continuous flood of voices expressing concern that the ACCA and other mandatory minimum laws are ineffective at achieving their purpose and damaging to our federal criminal system and our nation. I commend this case is another example of the need to reconsider the ACCA and mandatory sentencing in general.”
Although Young’s sentence of 15 years is viewed as a wildly disproportionate to the passive possession of ammunition, prosecutors indicated that it was his recidivism for burglary, theft, vandalism, and contributing to the delinquency of a minor that motivated law enforcement to prosecute him in this federal arena.
Read the full opinion here.
