courts

Abortion law must take effect before judge considers injunction

The Tennessee Senate meets on June 1, 2020. (Erik Schelzig, Tennessee Journal)

U.S. District Judge Chip Campbell says he won’t decide about whether to impose an emergency injunction on sweeping abortion restrictions passed by the General Assembly until Gov. Bill Lee signs the legislation into law.

Despite earlier assurances that the Senate wouldn’t take up the abortion bill in its return from a 75-day coronavirus hiatus, the chamber abruptly brought the measure up for a vote after midnight on the last night of the session. It passed 23-5 in the Senate and 70-20 in House.

Neither House Speaker Cameron Sexton (R-Crossville) nor Senate Speaker Randy McNally (R-Oak Ridge) has yet signed the engrossed bill. Once that occurs, the governor has 10 days, excluding Sundays, to sign,  veto, or allow the bill to become law without his signature. Lee, who originally proposed the measure, is expected to sign the bill quickly once it reaches his desk.

The bill seeks to enact a nearly universal abortion ban once a fetal heartbeat is detected. If successfully challenged in court, the bill seeks to automatically impose successive abortion bans eight, 10, 12, 15, 18, 20, 21, 22, 23 and 24 weeks of gestation.

Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union filed a federal lawsuit seeking to block the law the same day the bill gained final approval in the General Assembly.

The plaintiffs asked Judge Campbell to take up their motion for an emergency temporary restraining order without waiting for the state to file its response, which is due by Friday. Campbell said he won’t rule on the injunction until the bill has been signed into law and that he will consider the state’s response if it is filed by the time the governor puts his signature on the bill.

Supreme Court turns down state’s effort to halt expanded absentee voting amid pandemic

The Tennessee Supreme Court has declined to immediately halt a judge’s order that the state must allow any voters concerned about being infected by COVID-19 to cast their ballots by mail. But the state’s highest court did agree to directly take up the full legal challenge of the ruling, bypassing the intermediate Court of Appeals.

Nashville Chancellor Ellen Hobbs Lyle earlier this month found the state’s position that fear of coronavirus infection was not a sufficient reason to request an absentee ballot presented an “unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”

When state election officials responded by creating a new category on the application form for those worried about COVID-19 rather than have it covered by the existing medical exception, Lyle called out the state for failing to adhere to her original order.

“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said in a recent hearing.

While the expedited appeal will speed up the state’s legal challenge, it appears unlikely the high court will decide the case before the Aug. 6 primary. Absentee ballots are already being sent out, and in-person early voting begins on July 17.

[TRANSCRIPT] Judge says ‘shame on’ state for not following absentee ballot order

Secretary of State Tre Hargett speaks with Rep. Curtis Johnson (R-Clarksville) on Jan. 29, 2018 in Nashville. (Photo credit: Erik Schelzig, Tennessee Journal)

Davidson County Chancellor Ellen Hobbs Lyle on Thursday found the state had failed to follow her order to make absentee ballots to anyone concerned about the coronavirus. But the judge stopped short of finding the state in contempt of the court.

“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said. “So, I’m calling the state out on that, for not adhering to the standards of a legal process, and not adhering to the order.”

Read the judge’s whole ruling from the bench here:

Before the court is the motion of the plaintiff under Tennessee Civil Procedure Rule 65 for me to enforce, compel, require the state to comply and adhere to the injunction order that was entered by the court of June 4, 2020. And in addition, the plaintiffs have asked the court to order sanctions asserting that the state has acted willfully in not complying with the court’s order.

The court’s ruling is that it grants the part of the motion concerning enforcement. The court denies the motion for sanctions. And the court’s reasoning is as follows: With respect to enforcement of the temporary injunction, the court finds the state did violate the court’s order, and did not adhere to the order, and did take steps which  were in direct contradiction of the court’s order.

No private litigant or business would take a court’s order where they had been told to do something and say, well, I think I’ve got a better idea about how this should be done and just do it their way in derogation of what the court has said. And that’s what the state did in this case. They took my order — I did not segregate COVID voters from other voters who had that excuse No. 3, and they changed and modified my order and added a step and a nuance and maybe even a chilling effect, it’s not clear, that the court had contemplated and determined was not correct.

I just have to say that it’s a matter of standards of legal process that the way that’s done and has always been done, is that  you file a motion to modify, you file a motion to alter or amend, you ask for a conference to discuss the remedy. And that’s done every day in this court. And if you think you know a better way to do something, then you come in with a motion and you the court and give the other side an opportunity to have input. And that’s not just the practice, that’s the rule. And it’s followed daily by all attorneys and parties and litigants in this court.

I just really have to say to that point, you know, shame on you for not following that procedure and just taking matters into your own hands. So, I’m calling the state out on that, for not adhering to the standards of a legal process, and not adhering to the order.

What I’m now going to have to do to straighten it out I’m going to have to take down that form they’ve put together and issue a new form along the lines we discussed today, to change Boxes 3 and 4. I’ll get that order out this afternoon and the state will be ordered to change the forms and post them and require election officials to post these new forms by noon tomorrow, and then to change their instructions to comply with this new form, and that will be done by 5 o’clock tomorrow.

In light of the declarations that had been filed with the court about comments and instructions that are being made to voters about voting absentee, the court will look at the compliance order for these state officials to give direction or instructions to the county officials so they will know what to do and what to say. That order will take me longer. And I hope to have that out tomorrow.

Finally, with respect to the awarding of attorneys’ fees or coming up with some dollar amount by the state, we’re in a time of some budget issues and a time of a pandemic when people have got  a lot of concerns. So the court is not going to issue the sanctions. However, there always is the specter of criminal contempt if after today’s orders. If there’s still noncompliance and there’s disobedience, then that’s a route that the court can go.

Plaintiffs in absentee voting case file contempt motion against state

The plaintiffs in a lawsuit over Tennessee’s absentee voting law have filed a contempt motion against the state for alleged violations of the judge’s order to immediately begin supplying mail-in ballots to anyone who asks for one.

Following last week’s ruling, State Election Coordinator Mark Goins sent an email to local officials telling them to “hold off” on sending absentee voting applications until the state could revise its forms or seek a stay in the judge’s order. The state then created a new category on its ballot application form that states voters are requesting to vote by mail because they have “determined it is impossible or unreasonable to vote in person due to the COVID-19 situation and therefore qualify as hospitalized, ill, or disabled and unable to appear at my polling place.”

The plaintiffs argue that the creation of that category wasn’t permitted by the court order, that it includes no definition of the “impossible or unreasonable” standard, and that there is no provision for someone to certify they can’t vote in person because they are caring for someone else.

“This unilateral disregard of the Court’s Order is designed to place increased scrutiny on voters who wish to do nothing more than to rely on this Court’s Order, lead to voter confusion and intimidation, and enable the state to segregate these voters’ absentee ballot requests and refrain from processing them,” according to the motion.

“The State has made calculated decisions to act contrary to the plain text of the Order and has instructed county election officials to do the same,” the plaintiffs said.

Goins told The Associated Press the state is complying and the plaintiffs aren’t citing the most up-to-date guidance.

“We are disappointed that plaintiffs have chosen to pursue a false narrative by leaving out updated guidance we distributed to counties on Friday that is being implemented,” Goins told the AP.

A hearing before Davidson County Chancellor Ellen Hobbs Lyle has been scheduled for Thursday.

Election officials instructed not to immediately comply with judge’s order on absentee ballots

A Nashville judge has ordered the state to start issuing absentee ballots to any registered voter who requests one, but State Election Coordinator Mark Goins is telling local officials not to immediately comply.

According to Goins:

Regarding the court’s decision, until we provide further instructions, do not send out any absentee applications. We may be sending a revised form. Do not update your own forms or language on your website yet. It is very important that we have uniform language. We are working on language for our website.  In the meantime, we expect a request for stay to put the ruling on hold as soon as possible […]

If a voter calls and asks for an application because of COVID-19, go ahead and take their information so you can send them a form later with the revised language if we update the form or a stay is not granted.

That appears to conflict with Chancellor Ellen Hobbs Lyle’s order, which enjoined election officials from enforcing previous rules and mandated that they “prominently post on their websites and disseminate to County Election Officials that voters who do not wish to vote in-person due to the COVID-19 virus situation are eligible to request an absentee ballot by mail or that such voters still have the option to vote in-person during Early voting or on Election Day.”

The decision to hold off on putting the order into effect is reminiscent of Gov. Bill Lee’s announcement that he would continue to urge parents to apply for school voucher while the state appealed a ruling that found the law unconstitutional. The judge later denied a motion to lift her stay and berated the Education Department for failing to inform potential applicants about the legal challenge on its website.

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Voucher law ruled unconstitutional, Lee vows quick appeal

Gov. Bill Lee speaks at a press conference on Tennessee’s coronavirus response in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

A Nashville judge has ruled Tennessee’s school voucher law violated the Tennessee Constitution because it was written in a way to only apply to two of the state’s counties and passed without residents’ consent.

Debate over the the school voucher bill dominated the 2019 legislative session, with the Lee administration starting out with a bill applying to at least five counties. The bill was successively whittled down affect fewer and fewer counties, ending up with just Nashville and and Shelby County in order for the bill to be narrowly approved.

Chancellor Anne Martin found that based on “the legislative history detailing the extensive tweaking of the eligibility criteria in order to eliminate certain school districts to satisfy legislators (rather than tweaking to enhance the merits of the Act) that the legislation is local in form and effect.”

Gov. Bill Lee’s office is promising a prompt legal challenge.

“We strongly disagree with the court’s ruling and will swiftly appeal on behalf of Tennessee students who deserve more than a one-size-fits-all approach to education,” Lee spokesman Gillum Ferguson said in a statement.

In-person Tennessee court hearings suspended until April 1

Tennessee courts are suspending in-person judicial proceedings until April 1 in response to the Coronavirus outbreak. Courts will continue to conduct business, Chief Justice Jeff Bivins announced.

Here’s the release from the Administrative Office of the Courts:

The Tennessee Supreme Court today issued an Order stating all Tennessee courts will remain open during the coronavirus outbreak, but suspending all in-person judicial proceedings through March 31, 2020. Chief Justice Jeff Bivins declared a state of emergency for the judicial branch, which follows Governor Bill Lee’s Executive Order and declaration of a state of emergency on March 12, 2020. The Order applies to state and local Tennessee courts, including appellate, trial, general sessions, juvenile, and municipal courts.

“Each day across the State of Tennessee, thousands of people attend court proceedings in-person when they come to the courthouse as jurors, witnesses, litigants, or in another capacity. Public spaces in courthouses tend to be small, tightly packed bench seats that provide the type of situations public health officials have encouraged people to avoid during the COVID-19 outbreak,” said Chief Justice Jeff Bivins. “However, judges, court clerks, and others provide essential constitutional functions that must be carried on. In issuing this Order, the Court struck a balance in limiting the public’s exposure to the virus with continuing essential court functions judges must provide to ensure the administration of justice.”

The Order includes a substantial list of exceptions including proceedings necessary to protect constitutional rights of criminal defendants, such as bond-related matters and plea agreements for incarcerated individuals; civil and criminal jury trials that are in progress as of March 13, 2020; proceedings relating to orders of protection; proceedings related to emergency child custody orders; Department of Children’s Services emergency matters related to child protection; proceedings related to petitions for temporary injunctive relief; proceedings related to emergency mental health orders; proceedings related to emergency protection of elderly or vulnerable persons; and proceedings directly related to the COVID-19 public health emergency. In addition, other exceptions to the suspension of in-person court proceedings may be approved by the Chief Justice. Any permitted in-court proceedings will be limited to attorneys, parties, witnesses, security officers, and necessary persons as determined by the trial judge.  

“We are reducing the number of people physically in the courthouse each day while ensuring judges and court clerks have the ability to continue with their constitutionally required duties,” Chief Justice Bivins said.

The Court’s Order includes several other provisions to help alleviate hardships or unintended consequences caused by the suspension of non-essential, in-person proceedings. For example, deadlines set forth in court rules, statutes, and administrative rules, including statutes of limitations, that are set to expire between March 13 and April 6, 2020, are extended through April 6, 2020 and orders of protection that would expire between March 13 and April 6, 2020, are extended until April 6, 2020.

“This is new territory for everyone,” Chief Bivins said. “We encourage judges, court clerks, attorneys, law enforcement, and others to work together to develop creative solutions that work for their individual jurisdictions. The goal is to limit the number of people coming into court each day while continuing to meet our duty and administer justice. We may amend this Order as the situation evolves, and we understand more about the obstacles judges and court staff are facing.”

The order expressly does not prohibit court proceedings by telephone, video, teleconferencing, email, or other means that do not involve in-person contact. The Court’s Order also suspends any Tennessee rule, criminal or civil, that limits a judge’s or clerk’s ability to utilize available technologies, including telephone conferences, video conferences, and video arraignments, that can help limit in-person contact. The Order does not affect a court’s consideration of civil or criminal matters that can be resolved without oral argument. 

Read the Order

Feds charge intelligence analyst with leaking classified material

A Nashville man has been arrested on charges of illegally obtaining classified information and passing it along to a reporter.

Daniel Everette Hale was arrested Thursday morning and was scheduled to appear in federal court in Nashville later in the day. Hale was enlisted in the Air Force between 2009 and 2013, assigned to the National Security Agency and deployed to Afghanistan. After leaving active duty, he was employed by a defense contractor. Prosecutors allege Hale passed along confidential  material to a reporter whose outlet published at least 11 documents market secret or top secret.

Here’s the full release from the Justice Department:

WASHINGTON – An indictment was unsealed today charging a former intelligence analyst with illegally obtaining classified national defense information and disclosing it to a reporter.  Daniel Everette Hale, 31, of Nashville, Tennessee, was arrested this morning and will make his initial appearance today at the federal courthouse in Nashville.  Assistant Attorney General for National Security John C. Demers, U.S. Attorney G. Zachary Terwilliger for the Eastern District of Virginia and Acting Special Agent in Charge Jennifer L. Moore of the FBI’s Baltimore Field Office made the announcement after the charges were unsealed. 

According to the indictment, Hale was enlisted in the U.S. Air Force from July 2009 to July 2013, during which time he received language and intelligence training.  While serving on active duty, Hale was assigned to work at the National Security Agency (NSA) and deployed to Afghanistan as an intelligence analyst.  After leaving the U.S. Air Force, Hale was employed by a defense contractor and assigned to the National Geospatial-Intelligence Agency (NGA), where he worked as a political geography analyst between December 2013 and August 2014.  In connection with his active duty service and work for the NSA, and during his time at NGA, Hale held a Top Secret//Sensitive Compartmented Information (TS//SCI) security clearance and was entrusted with access to classified national defense information.

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Former anchor Demetria Kalodimos sues WSMV-TV

(Handout photo.)

Former news anchor Demetria Kalodimos is suing WSMV-TV for gender and age discrimination in federal court.

Here’s the full release from the Lieff Cabraser law firm:

Nashville, Tenn. — The national plaintiffs’ law firm Lieff Cabraser Heimann & Bernstein announces the filing of a gender and age discrimination employment lawsuit in federal district court in Nashville on behalf of “Face of Channel 4” news anchor Demetria Kalodimos against Meredith Corporation d/b/a WSMV Channel 4 (NBC).

The action, filed under the Tennessee Human Rights Act and Disability Act, Tennessee common law, and the Age Discrimination in Employment Act of 1967 alleges a continuing policy, pattern, and practice of gender and age discrimination. After an extended campaign of biased treatment against her, Channel 4 terminated Ms. Kalodimos’s employment after nearly 34 years of award-winning journalism by leaving her a one-page letter at the Channel 4 reception desk.

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Norris confirmed for federal judgeship in Memphis

Senate Majority Leader Mark Norris (R- Collierville) and Senate Democratic Caucus Chairman Jeff Yarbro (D-Nashville) attend a hearing on open records exemptions in Nashville on Jan. 30, 2018. (Erik Schelzig, Tennessee Journal)

The Senate on Thursday voted to confirm the long-delayed judicial nomination of state Senate Majority Leader Mark Norris. The Collierville Republican now heads to the federal court bench in Memphis. The confirmation vote was 51-44. The chamber also confirmed former federal prosecutor and FBI agent Eli Richardson to a federal judgeship in Nashville.

Here is some reaction to Norris’ confirmation:

I recommended Senator Norris to the president, and I strongly supported Mark’s nomination. He is respected by his peers around the country, having been elected chairman of the Council of State Governments, and has been an advocate and a champion for federalism and for the separation of powers. He is a citizen, a lawyer and a legislator. I have known him for many years — since I was the governor of Tennessee — and I am glad the Senate voted to confirm him today. — U.S. Sen. Lamar Alexander (R-Maryville).

 

“Mark Norris has long been a devoted public servant in Tennessee, and I am pleased he will continue to serve our state as a federal district court judge,” said Corker. “I am confident Mark will faithfully uphold the Constitution and serve West Tennesseans with integrity as he has throughout his terms in the state legislature. — U.S. Sen. Bob Corker (R-Chattanooga).

 

As our Senate Majority Leader, Mark has been an indispensable asset not just to the Senate but to state government as a whole. While we will all miss his keen mind, sound judgment and strong leadership in state government, we can take comfort in the fact our federal courts have gained an outstanding judge. — State Senate Speaker Randy McNally (R-Oak Ridge).

 

Congratulations to Mark Norris for being confirmed as a West Tennessee federal judge.  Mark’s many years of service have made him highly respected throughout the entire state of Tennessee, and I believe he will make an excellent addition to this court. — U.S. Rep. David Kustoff (R-Memphis).