Tennessee Supreme Court to Hear Oral Arguments for October in Nashville

October 2, 2019

Nashville, Tenn. ­– The Tennessee Supreme Court will hear oral arguments on October 3, 2019.  The details of the cases are as follows:

·       James A. Dunlap, Jr. v. Tennessee Board of Professional Responsibility – Mr. Dunlap, a licensed attorney in the state of Georgia, was granted pro hac vice status to represent his client, a health care company, in its efforts to establish opiate treatment centers in Tennessee.  This matter was referred to the Board of Professional Responsibility after Administrative Law Judge Kim Summers (“the ALJ”) revoked Mr. Dunlap’s permission to appear pro hac vice in Tennessee.  The hearing panel of the Board determined that Mr. Dunlap violated his duty of candor and engaged in conduct involving dishonesty when he intentionally misled the ALJ by misrepresenting the status of his client’s federal case.  Further, the hearing panel determined that Mr. Dunlap attempted to improperly influence the ALJ by threatening to sue the ALJ in federal court for not complying with his requests.  Finally, the hearing panel determined that Mr. Dunlap’s actions, which it described as “duplicitous and bullying,” were prejudicial to the administration of justice.  As a result of its findings, the hearing panel suspended Mr. Dunlap from the practice of law in Tennessee for twelve months.  On appeal, the chancery court affirmed the hearing panel’s determinations as to Mr. Dunlap’s ethical violations and the imposition of suspension as the appropriate disciplinary sanction.  On appeal to the Supreme Court, Mr. Dunlap challenges the hearing panel’s factual findings underlying its determinations as to his ethical violations.  Mr. Dunlap also contends that there was no material harm as a result of his actions, and, therefore, a one-year suspension is unfair and disproportionate to any purported violations of the Rules of Professional Conduct.

·       Jeffery Todd Burke v. Sparta Newspapers, Inc. In this case, Jeffrey Burke sued Sparta Newspapers, Inc., (“Sparta”) for alleged defamatory statements published in an article in The Expositor regarding Mr. Burke’s indictment and arrest.  The trial court granted Sparta’s motion for summary judgment and dismissed the case, concluding that the article was based on an interview that constituted an official action of the government, so any alleged defamatory statements therein were protected by the fair report privilege.  Additionally, the trial court determined, as it related to the fair report privilege, that Mr. Burke failed to demonstrate actual malice on the part of Sparta.  The Court of Appeals reversed the trial court’s grant of summary judgment and held that the fair report privilege did not apply to this case because Tennessee courts have not extended the privilege to one-on-one interviews as constituting “an official action, official proceeding, or public meeting within the scope of the fair report privilege.”  Further, the Court of Appeals explained that even if it were to extend the fair report privilege to the type of one-on-one interview that occurred in this case, the article still would not be protected because it failed to convey to readers that the content was based on the detective’s statements as the public information officer in his official capacity.  Finally, the Court of Appeals held that Sparta waived any claim to its alternative ground that actual malice was required to prove defamation because Mr. Burke was a public figure or a limited purpose public figure.  The Supreme Court granted Sparta’s petition to determine three issues: (1) whether the Court of Appeals’ holding in the opinion that a fair and accurate report of on-the-record statements made by a sheriff’s department public information officer about a pending criminal case during an interview with a newspaper reporter does not qualify for protection under Tennessee’s fair report privilege is contrary to Tennessee law; (2) whether the Court of Appeals’ analysis of the supposed “distinction between reports of official actions or proceedings on the one hand and sources within the government on the other” is contrary to Tennessee law; and (3) whether the Court of Appeals’ requirement imposed by the opinion that, “[t]o rely on the fair report privilege, that article should be written in such a manner that an average reader can ‘understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding,’” is contrary to Tennessee law.

·       State of Tennessee v. Alexander R. Vance and Damonta Meneese - A jury convicted Defendant Alexander Vance and his co-defendant Damonta Meneese of second degree murder, first degree felony murder, especially aggravated robbery, and three counts of aggravated assault.  The trial court merged the second degree murder conviction into the felony murder conviction and imposed an effective sentence for all offenses of life imprisonment plus 21 years for each defendant.  Defendant Vance was the sole party to appeal.  Before Mr. Vance’s trial, an additional co-defendant was severed from the case due to issues regarding competency to stand trial.  This third party made previous statements to a detective that identified Mr. Vance and Mr. Meneese as participants in the alleged crime.  Mr. Vance’s counsel submitted a motion to exclude any statements made by the third party due to questions of his ability to provide “competent testimony.”  The trial court granted the motion.  During the trial, the State asked the trial court for permission to question the detective about the third party’s testimony, despite the trial court’s grant of the motion, because defense counsel opened the door on cross-examination by implying only one witness had provided information regarding the defendants’ involvement in the alleged crime.  Over both defendants’ objections, the trial court allowed the State to ask a limited question, specifically tailored toward informing the jury that there was another party who identified the defendants as participants without sharing the third party’s identity or the specific content of the statement.  The third party never was called as a witness in the trial.  The Court of Criminal Appeals affirmed the decision, holding that the trial court did not abuse its discretion when it determined that the defendants “had opened the door to the use of [the third party’s] statement to prevent the impression only a single witness identified the two [d]efendants as participants in the crime.”  On appeal to the Supreme Court, Mr. Vance argues that his Sixth Amendment right to confront the witnesses against him was violated when the trial court allowed the State to admit inculpatory statements by a non-testifying witness under the doctrine of curative admissibility.  In addition, Mr. Vance argues that the trial court’s decision was contrary to its prior grant of motion related to this issue.  The Supreme Court has requested that two additional issues be addressed by both parties: (1) whether plenary or plain error review applies to the constitutional ground, when Mr. Vance included it in his motion for new trial but contemporaneously objected on other grounds; and (2) whether the admissibility of the evidence is controlled by the doctrine of curative admissibility.

Media members planning to attend oral arguments should review Supreme Court Rule 30 and file any required request.