Nashville Bar Journal | February/March 2022

A Safer, Stronger Nashville

MARTESHA L. JOHNSON, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

CAROLINE SAPP, Managing Editor

LAUREN POOLE, Managing Editor

ADRIENNE BENNETT CLUFF, Layout/Design/ Production

EDITORIAL COMMITTEE

RAMONA DESALVO

TIM ISHII

KELLY FREY

SUMMER MELTON

ROB MARTIN

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 37219-2419.

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.

FROM THE PRESIDENT

February 2022 | Martesha

L. Johnson

As we all know, February is the shortest month of the year. It feels almost like you blink and its March Madness. This year, with the latest Covid-19 surge and the continuous ebb and flow of anxiety from the pandemic, it is so easy to want to rush through the month to hopefully get to the “better” days ahead. This year I am choosing to make the most of all that February has to offer, and I hope you will join me. This month, the month of love, provides us an opportunity to give the greatest gift of love possible: self-care.

Historically, self-care has not been synonymous with the legal profession. Before the Covid-19 pandemic, legal professionals suffered high rates of depression, anxiety and substance abuse. Our role as lawyers requires us to advocate for the needs of others, to help our clients fix their lives, and to provide wise counsel to those who trust us with their issues. We have to be on, to show up with our best selves, and in our day to day work, there isn’t much space for self-care. We have to change this narrative.

Oprah Winfrey is credited with saying, “Breathe. Let Go. And remind yourself that this very moment is the only one you know you have for sure.” We are living in a time where death and sickness is all around. The American Psychological Association reports stress and burnout is at an all time high across professions. Friends, the legal profession needs to embrace radical self-care. How do we do it? By being intentional in our practices and encouraging the shift that will make self-care a core value for lawyers and the legal profession.

Self-Love is the Best Love.

This month I am issuing a show yourself some love challenge. I am asking you to take a break from the chaos of life and connect with yourself, commit to doing something you love every day, and find ways to relax all month. I would love to see your self-care moments this month. Please share them with me!

February is also the month dedicated to recognizing African-American History. This is an important time to celebrate the impact of African-American culture and contributions to society. As you plan your month, consider:

• Supporting a Black-owned business.

• Visiting the National Museum for African-American Music.

• Completing a 21 day race & equity challenge with your colleagues.

• Joining and supporting the efforts of the NBA diversity committee.

• Donating to a Historically Black College or University.

Much Love, n

FEBRUARY 2022

MARCH 2022

Hear Ye, Hear Ye | Events of Interest

2022 NBA BOARD OF DIRECTORS

MARTESHA L. JOHNSON, President

GULAM ZADE, President-Elect

Journal

HON. MELISSA BLACKBURN, First Vice President

LIZ SITGREAVES, Second Vice President

CHARITY WILLIAMS, Secretary

FLYNNE DOWDY, Treasurer

GIL SCHUETTE, Assistant Treasurer

LELA M. HOLLABAUGH, General Counsel

JEREMY OLIVER, YLD President

MIKE ABELOW, Immediate Past President

LORA FOX, First Vice President-Elect

MARLENE MOSES, Second Vice President-Elect

BAHAR AZHDARI

CHRISTEN BLACKBURN

JAZ BOON

ERIN COLEMAN

RAQUEL EVE OLUYEMO

SAM FELKER

MANDY FLOYD

ELIZABETH FOY

MARY TAYLOR GALLAGHER

JEFF GIBSON

PAZ HAYNES

JOSEPH HUBBARD

KIM LOONEY

JUNAID ODUBEKO

KAYA GRACE PORTER

MARIE SCOTT

TIM WARNOCK

LUTHER WRIGHT

NBA TEAM

MONICA MACKIE, Executive Director

CAMERON ADKINS, CLE Director

ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator

TRACI HOLLANDSWORTH, Programs & Events Coordinator

SHIRLEY ROBERTS, Finance Coordinator

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

Liberty Bell Award Nominations

Nominations are now being sought for the Liberty Bell Award, which will be presented during the Law Day Luncheon on Friday, May 6. This award is given to the person or group— not necessarily attorneys or law related groups— who has promoted a better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations and supporting documentation should be submitted to the NBA Community Relations Committee via Monica.Mackie@nashvillebar.org no later than Friday, March 18. n

Jack Norman, Sr. Award Nominations

Nominations are being sought for the Jack Norman, Sr. Award, which will be presented during the NBA Law Day Luncheon on Friday, May 6. The Jack Norman Sr. Award is given to criminal law practitioners—including specifically defense attorneys, prosecuting attorneys, and judges of courts with criminal jurisdiction—who practice before or serve as judges of courts exercising criminal jurisdiction located in the Metropolitan Nashville area. Nominations and supporting documentation should be emailed to the NBA Criminal Law & Criminal Justice Committee Co-Chair, Ben Raybin, at BRaybin@nashvilletnlaw. com no later than Friday, March 18. Visit NashvilleBar.org/Awards to learn more. n

In celebration of the American Bar Association’s Law Day, the Nashville Bar Association invites you to join us on Friday, May 6, at the Downtown Renaissance Hotel for our Law Day lunch.

For the latest information, stay tuned to NashvilleBar.org/LawDay n

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

(NOVEMBER 1 - DECEMBER 31)

Michael Ain

Madison Breanna Baldacci

Amy L.B. Bennecoff Ginsburg

Ashley Lynn Brown

Morgan L. Burkett

Patricia Burgess

Johnathan David Burnley

Taylor Jo Cross

Thomas J. Cullen

Nathan William Dickerson

Daimon Scott Duggar

Benjamin Walker Entwistle

Jacob David Farmer

Jordan Scott Ferrell

Jacob Freeland

Paige Goodwin

Kate Alexandra Hamilton

Allyson Dacus Hargett

Claire Nicole Heflin

Lorne Grant Hiller

Brenden Taylor Holbrook

Mark D. Lennon

Kendria S. Lewis

Janis Loman

Elizabeth A. Martin

Susan Mee

Karin Idella Morris

Shawndra Nash

Abigail Parker Nix

John C. Nix

Andrew Thomas Noell

Joseph R. North, Jr.

Nathan North

Kareim St. John Oliphant

Katherine Knies Ovalle

Allan Joseph Parker

Kaitlin Parham

Peter N. Raffanti

Anna Randolph

Samuel Adam Raque

Timothy Reeves

Taylor Rippe

Andrew Rizkalla

Tyler William Saenz

Madison T. Santana

Angelica Maria Santiago

Julie M Schiff

Margaret M. Siller

Isabella M. Simon

Michael Harris Sliskovich

Scarlett Victoria Sloane

Catherine A Tabor

John R. Weber

John Kelley Whitaker

Kathryn Elizabeth White

John Patton Williams

Abraham Williamson

John Wesley Williamson

Meagan B. Willis

Kelli Fay Woodward

Christine N. Younger

Willard Younger

David Joseph Zeitlin

Feature Story | Gary Blackburn

Sarah “Sallie” Polk, the grand niece of President and Mrs. Polk

Polk Flats

Nothing Lasts Forever

The Rule Against Perpetuities is best remembered as a law school logic game filled with word traps, which may serve as triggers to this day. Property must vest within a period measured by lives in being plus twenty-one years. To this, we may add a gestation period unrelated to Roe v. Wade.

The premise is clear; every piece of land must be owned by someone. I was taught that the origin of this requirement was fealty to the king. But the kings of my lifetime—Elvis and Richard Petty—are long gone.

So, regretfully, is Polk Place, a mansion and grounds in downtown Nashville built by Felix Grundy and owned by President James K. Polk. This beautiful structure, intended by Polk to be preserved for posterity, is lost forever. The tomb which contains the grave of the President and Mrs. Polk rests with their remains on the grounds of the State Capitol. All of this is because a great man and good lawyer wrote his own Last Will and Testament while he held the highest office in the land and violated the Rule.

The origin of the Rule Against Perpetuities stems from the days of the English feudal system. It is probable that the doctrine began with the “Duke of Norfolk’s Law,” 3 Ch Cas 1, 22 Eng. 931 (House of Lords, 1682). No less an authority than Wikipedia dates the twenty-one-year requirement to Cadell v. Palmer, 1 ch.Fin.372, 8 Eng. Ry. 936 (H.L. 1832, 1883).

Whatever its origins in England, the Rule Against Perpetuities was well established in America by the time Tennessee was admitted as a state in 1796. Article 1 § 22 of the Constitution of Tennessee states, “…[t]hat perpetuities and monopolies are contrary to the genius of a free state, and shall not be allowed…”.

Because the Tennessee Constitution fails to define “perpetuities,” Tennessee courts historically looked to the common law for its proper meaning.1 However, in 1994, Tennessee adopted the “Tennessee Uniform Statutory Rule Against Perpetuities Act,” codified at T.C.A. § 66-1-201 et seq.

The most obvious deviation from the common law is found

in T.C.A. § 61-1-202 (a)(2), which excludes from the characterization “perpetuity” as an interest that “…either vests or terminates within ninety years after its creation.” Yet Mr. Polk’s will would not have survived even a review under the 1994 Uniform Act.

Mr. Polk’s historical significance is often forgotten. Elected president in 1844, without carrying his home state, he presided over the war with Mexico that added Texas, California, and much of the Southwest to the territory of the United States. In so doing, the expansion required the country once again to confront the extension of slavery. The Compromise of 1820 was undone, and the “Impending Crisis” followed.

Felix Grundy was a great man in his own right. A judge, congressman, and U.S. Senator, as well as a noted lawyer and orator from whom Mr. Polk had been given his early training as a lawyer. Grundy died in 1840. Polk purchased the house and property from his estate and intended it as his retirement home upon leaving office in March 1849.

Near the end of his one-term presidency, Polk drafted his own Last Will and Testament in the White House, but not in the Oval Office, as it was not created until the Taft administration in 1909. In his Will, he devised his home in Columbia, Tennessee, to his mother for her life and devised the remainder to his brother, William H. Polk. He also devised his property in Arkansas to his ward and nephew, Marshall T. Polk, a cadet at West Point. Polk directed that his remains and those of his wife, Sarah Childers Polk, be buried on the premises of Polk Place. Polk devised Polk Place to his wife for her life and devised the remainder to the State of Tennessee in trust for his blood relatives to ensure that the “lots and premises never pass into the hands of strangers, who are not related to [Polk] by consanguinity.”

James K. Polk, the 11th President (and second from Tennessee), returned to Nashville, and on June 15, 1849, died of cholera.

(continued on page 8)

Feature Story | Nothing Lasts

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(continued from page 7)

Sarah Childers Polk never remarried and not surprisingly was “grand dame” of Nashville society for decades. She is said to have entertained presidents and generals, both Union and Confederate, at Polk Place. Congress created a pension fund for widowed first ladies from which she collected $5,000 per year. She died on August 14, 1891.

Tasker Polk, Polk’s nephew, and other relatives of the president filed a Bill of Complaint in the Chancery Court for Davidson County, No. 15, 991, claiming that the testamentary trust created under Polk’s Will was “abortive, null and void.” They contended that the requirements in the trust that (1) the state maintain a trust in perpetuity for the “House of Polk” and (2) the tomb erected over the remains of Polk and his wife forever remain on the property violated the Rule Against Perpetuities because such provisions made the property inalienable. These provisions, the Complainants argued, created a “House of Nobility.” Further, Polk’s relatives argued that the state had no power to accept the trust created under Polk’s Will and that the trust was void due to vagueness because the persons Polk desired to “enjoy” the property could not be identified.

Neither the current governor, John P. Buchanan, nor the General Assembly agreed to execute or accept the trust Polk created under his Will. In the event the state declined its trusteeship, Polk had stipulated in his Will that a “blood relation” serve as trustee “from time to time,” yet no relative stepped forward, and the property was left without an owner.

No real controversy arose over whether the trust was a nullity. The court was then faced with the sensitive issue of where to place the remains of Mr. and

Mrs. Polk. Sale of the property was delayed facilitating the removal. The Clerk and Master was authorized to borrow $1,500 to defray the expenses, to be repaid upon sale of the property. The state agreed to the removal of the remains to the Capitol grounds where they remain today, covered by the same tomb which had been placed at Polk Place.

On February 5, 1898, Polk Place was sold by order of Chancellor Alison Humphries at the south door of the Davidson County courthouse. Jacob McGavock Dickinson purchased Polk Place for $20,000.2 Interestedly, the court had appointed Dickinson guardian ad litem for certain beneficiaries, but he resigned to bid at the auction.

Two years later, on May 4, 1900, Dickinson sold the property to J. Craig McLanahan, an executive with the United States Iron Company in Philadelphia, and C.M. Gates for $30,000. A month later, Gates conveyed his interest to McLanahan and his wife.

In 1901, the elegant and historic Polk Place was demolished, and work began on Polk Flats and Watauga Flats, characterized as Nashville’s finest luxury apartments. The Young Women’s Christian Association, or YWCA, owned the apartments for decades, but in 1947, Polk Flats was razed for a parking lot. In 1961, a motel was built on the property of Polk Flats.3 By 1961, few people lived in downtown Nashville. The mansions that had surrounded the Capitol grounds were gone, and that great implement of urban destruction, the automobile, made profitable the construction of an inexpensive motel where a president was meant to lie forever.

It is painful to contemplate what a present treasure would have been a

(continued on page 14)

History of Alcohol & the Law Governing Alcohol

Through our history, humans have consistently found enjoyment in liquids containing sugar. The most popular way to enjoy such elixer is to ferment and distill it into alcohol (all primates catch a buzz from fermented fruit). Beer was made and consumed in Israel 13,000 years ago, as shown by beer yeast found on artifacts. As early as 7,000 B.C., fermented alcohol was stored in jars in China. In Egypt, several thousand years ago, women baked bread that was later fermented into beer, as yeast breaks down baked starches into sugars more easily than flour. In America, early residents domesticated a Mexican grass called teosinte, which over time became maize. This later became the primary ingredient of bourbon— corn, a grain that feeds and fuels the United States. As a result, governments have felt the need to regulate and tax this desirable material.

The Codes of Hammurabi have long served as a model for establishing justice in many cultures. Paragraphs 108-110 of the Code controlled beer production. Realizing the importance of alcohol to facilitate meetings, Paragraph 109 states:

If conspirators meet in the house of a tavern-keeper, and these conspirators are not captured and delivered to the court, the tavern-keeper shall be put to death.

Beginning in 1651, with the Navigation Acts, the British Parliament tried to limit trade so that it would occur within its sphere of influence. That way, it could reap the benefits of taxation. As a result, American colonists had to buy sugar, molasses, or rum only from other British colonies (French colonial products were cheaper but illegal). As a result, colonists started drinking less rum and more of other alcohols made from indigenous materials, such as rye in the

Northeast, applejack in New Jersey, and corn over the mountains.

In 1794, Secretary of the Treasury, Alexander Hamilton, instituted a tax on whiskey to pay off American Revolution debt – his was the first tax levied by the new constitutional government. The tax gave preferential treatment to large Eastern distillers by taxing them only on the actual whiskey produced and crediting them with spillage. Conversely, Western distillers were taxed based upon the size of the still, with the assumption that the stills would run 7 days a week. Frontier distillers in Western Pennsylvania resisted payment of the “whiskey tax” because of its inequities and the shortage of any currency to pay the tax. Settlers often used whiskey as currency of barter. Then-President George Washington successfully led an army to suppress the insurgents. In 1802, and despite being a wine lover, Thomas Jefferson eliminated the whiskey tax.

Nearly a century later, the U.S. passed its first food safety statue: The Bottled in Bond Act of 1897. The statute controlled the contents of alcohol for consumer protection and was intended to prevent the various fake whiskeys on the market, such as neutral grain spirits flavored with prune juice, snake venom, and tobacco juice. This established a standard called Bottled in Bond, which is still in use today. To be “Bottled in Bond,” a whiskey must come from a single U.S. distillery, and it must be made during a single distilling season, aged for at least 4 years in a federally bonded warehouse, and bottled at 100 proof. It must also contain no additives except water.

In 1909, President William Howard Taft issued rules for the definition and composition of American whiskey. The terms “bourbon”

(continued on page 12)

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.

DEC/JAN GOLDEN OLDIES

Congratulations to Chancellor Pat Moskal of Chancery Court, Part I for correctly identifying the individuals in last issue’s photo! From left to right: Chancellor Russell Perkins, Judge Randy Kennedy, Bob Mendes, Judge Hamilton Gayden, and Bob Patterson. n

BACKGROUND CHECK

Andrea Perry | Bart Pickett

It’s not often when the feature of “Background Check” has accolades that range from being named Best of the Bar to one of Nashville Lifestyle’s 25 Most Beautiful People. If you have been involved in the Bar Association or out in the community, there’s a good chance you’ve met this dynamic woman.

Andrea Perry, who grew up in Memphis, decided at the ripe old age of 8 that she wanted to be a lawyer after successfully defending “Johnny B. Good” in an after-school enrichment program mock trial. The Memphis native attended Central (or “The”) High School where she excelled in academics and track. She stayed in Memphis to attend college at Memphis State (the name changed during her senior year). While there, Perry majored in Psychology, which she found interesting and thought it could help her in her future career. Despite her professors’ encouragement to pursue a PhD, Perry had her heart set on law school. Following graduation from college in 1996, Perry needed a break so she took a year off and managed a women’s clothing store in a local mall.

She laughs that she did her gap year incorrectly by doing retail instead of traveling the world.

When it came to choosing a law school, she’s not sure why exactly, but Perry felt drawn to Vanderbilt, and it turned out to be a great decision for her. While some people have less than great memories of their time in law school, Perry describes it as three of the best years of her life. During her time there, Perry helped co-found Vanderbilt Law School’s Journal of Entertainment and Technology Law. A summer clerkship at Miller & Martin’s Chattanooga office resulted in an associate position in the Nashville office when the firm absorbed the Nashville-based Trabue Sturdivant DeWitt, which was in need of associates.

Perry’s assigned mentor at Miller & Martin focused on real estate, commercial lending, and corporate law. As a result, her practice also focused on those areas along with some entertainment law that the firm gave her the freedom to explore. Perry continued to practice at Miller & Martin until James Crumlin recruited her to join Bone McAllester & Norton in 2006. While at Bone, Perry served on the board of directors and as the recruiting attorney. Perry appreciated and helped cultivate the inclusive, diverse culture at Bone. In her role as recruiting attorney, Perry, along with her colleagues, sought out diverse candidates and helped ensure they had the support needed to ensure their continued success at the firm.

Recently, Bone merged with the national firm, Spencer Fane, based out of Kansas City. According to Perry, the Nashville office retains the same

lawyers and culture while having the added benefit of a broad array of practice groups that comes with a large firm.

Throughout her career, Perry has retained a passion for children and that is reflected in her community service. She devotes her volunteer hours to helping youth. She currently serves on the Boards of Rocketown, The Children’s Theater, and the Women’s Fund of the Community Foundation. Her philanthropy extends into her professional career as well. She has been recognized by the TN Supreme Court as one of the “Attorneys for Justice” for her commitment to providing at least 50 hours of pro bono work during the year.

While work and volunteering are a big part of her life, Perry’s favorite time is spent with her wonderful family. She met her husband Phil, a former Belmont basketball player who now owns a basketball fundamentals mentoring company, through their church, Mt. Zion Baptist. The couple, who married in 2005, still attend that church, but now with their two sons (15 and 12) in tow. Their sons’ lives dictate their outside interests. Perry describes herself as a sideline cheerleader/referee these days as she spends lots of time supporting them in their football and basketball pursuits. They also take an adventure-based trip each year during either fall or spring break. n

BART PICKETT is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups in litigation throughout Middle Tennessee.

Editorial | History of Alcohol & the Law

and “rye” are used to identify the dominant grains used in a spirit. The term “whiskey” can only describe a spirit made from grain. If a spirit is made from 100% aged grain, it is “straight whiskey.” If a neutral spirit is used, it becomes “blended whiskey.”

Between the years 1920 and 1933, the Eighteenth Amendment (more commonly called “Prohibition”) imposed a constitutional ban on alcohol. The subsequent loss in taxes on alcohol had to be offset by an income tax permitted by the Sixteenth Amendment. In 1919, Congress passed national prohibition legislation informally nicknamed after Andrew Volstead, a Minnesota congressman who promoted it.

During Prohibition, bootleggers trafficked alcohol. Doctors were allowed to prescribe medicinal alcohol that patients could pick up at a drugstore. To prevent bootleggers from converting industrial alcohol into methanol, the federal govern-

ment ordered the addition of poison, which resulted in as many as 10,000 deaths. Grape juice consumption quadrupled during Prohibition, in part because manufacturers informed consumers about ways to prevent grape juice from becoming wine.

The Twenty-First Amendment, ratified in 1933, repealed the Eighteenth Amendment but allowed states to control the delivery or use of alcohol. Tennessee banned the sale of alcohol prior to Prohibition and kept its prohibition in place afterward (that is one reason why Jack Daniels was made in St. Louis for a long period of time).

After Prohibition, the “three-tier” system—governing production, distribution, and retail—was designed to maximize tax revenue, which was much needed during the Great Depression. The three-tier system that exists today in most states was also supported by bootleggers who gained political clout during Prohibition and want-

You practice the law.

(continued from page 9)

ed to continue to prosper from alcohol. The history of the world is, in part, the history of alcohol. The taxation and control of alcohol has caused—or at least, contributed to—the start of many revolutions (Russian nobility requiring that the relevant noble had to approve all vodka production was one of the many causes of the peasant revolts that culminated with the Russian Revolution). And as we’ve seen in our own country, when the ability of people to make and consume alcohol has been limited, history happens. n

ED LANQUIST is a co-founder of Patterson Intellectual Property Law. His practice is focused on patent, trademark, and copyright litigation, intellectual property counseling, trademark prosecution, and technology law.

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Hemmelgarn

BILL

& PHIL’S GADGET OF THE MONTH

Windows 11 | Bill Ramsey & Phillip Hampton

Call us naïve, but we really believed Microsoft experts back in 2015 when they told us that the new version of Microsoft’s flagship product, Windows 10, was the “last version” of Windows, and that, henceforth, Microsoft would just continually update Windows 10 until the end of time or the end of Microsoft (whichever came first). So, we, like so many others, were surprised when Microsoft announced in mid-2021 that there would be a new version of Windows coming out later in the year. With this announcement also came the news that Windows 10, which many of our colleagues had begrudgingly adopted after Microsoft’s support for their beloved Windows 7 terminated in 2020, would similarly be discarded on the ash heap of unsupported software in 2025.

For a moment, it was all too much. We had made it through pandemic lockdowns, travel restrictions, conference cancellations, and endless Zoom meetings. We were finally feeling as if we were approaching normality. Then Microsoft goes and pulls the rug out from under our comfortable computing platform. Would we have another steep learning curve for a brand-new operating system? Would

we have to buy all new hardware for the office and home? Why is Microsoft treating us like lab rats? The questions came fast and furious.

Fortunately, we have learned over the years that initial quick reactions to new technology are usually overreactions. We generally warm up to the new, after our tantrum subsides. So, our initial reticence to embrace Microsoft’s new Windows 11 gave way to acceptance when we woke up one morning and discovered that one of our desktops had auto upgraded to Windows 11 overnight (we think we must have been forewarned that this was happening; we just don’t remember).

After the initial shock of discovering a brand-new operating system controlling our home desktop computer, we were greatly relieved to note that Windows 11 was not so radically different from Windows 10. Ah yes, we will live and work again. But this relief lasted only for a minute as we frantically searched for the trusted Start button that had been in the same location on the Windows taskbar for as long as we can remember. We clicked on the extreme left of the taskbar and nothing happened… no Start menu button. Microsoft engineers have defaulted the task bar icons, including the trusted Start menu button, to appear centered in the middle of the task bar. We quickly learned that we could change a setting to make it default to the left as it had been since the beginning of the millennium, and we were happy again.

All kidding aside, the biggest beef with Windows 11 from some pundits is the enhanced hardware requirements needed to run the new operating system. As it turns out, the combination of CPU, RAM, storage, and security protocols required for Windows 11 means that most PCs manufactured before 2018 will not make

the cut. Quite honestly, this policy does not bother us too much as we rarely have any computing device that we use on a regular basis that is over 3 or 4 years old. Furthermore, pre-2018 computers will be almost prehistoric in terms of usefulness by the time Windows 10 is put out to pasture in 2025. So, we decided to have no problem with the hardware requirements for Windows 11.

The biggest visual change we have noticed so far is the reconstituted Start menu when you click the Windows logo button (Start menu button). The Windows 11 Start menu is much more sleek and “businesslike.” Gone are the live tiles we initially hated in Windows 10 but had grown to love (and indeed customized) for our own Start menus. Sadly, many of the apps we had pinned to our Windows 10 Start menu were no longer pinned after the Windows 11 upgrade. They had to be “re-pinned.” Despite this annoyance, we are beginning to appreciate the more orderly appearance of the new Start menu. Another annoyance that still bugs us (and we hope that Microsoft will fix in a future update) is the fact that taskbar icons are automatically grouped by application and cannot be ungrouped. For example, if you have four Excel spreadsheets open on your desktop and you want to bring up one of the spreadsheets to work on, you must first click the Excel group icon on the taskbar to present the list of open spreadsheets. Only then can you click the one you want to work on. In all previous versions of Windows that we can remember, you could ungroup those icons so that four open spreadsheets presented you with four separate icons on the taskbar. Microsoft overlords, if you are listening, fix this ASAP.

One of our favorite new features in

(continued on page 18)

Feature Story | Nothing Lasts Forever

historic site on a grassy lot surrounded by ancient trees at 7th and Union in downtown Nashville. Could it have been saved? Probably not by Mr. Polk himself, without changing his intention.

He might have deeded the property with a reversionary clause, should a blood relative not have been willing to live there in his shadow. The possibility of a reversion does not violate the Rule Against Perpetuities. Commerce Union Bank v. Warren, 707 S.W. 2d 854 (S. Ct. 1986). But without a blood relative in residence, to whom would the property revert? Presumably, the property would revert to the Estate of James K. Polk and the process of sale, division, and demolition might have occurred nonetheless.

Assuming the property could have been left in trust, who would have maintained it? The Hermitage, home of President Andrew Jackson, ultimately came under the control of an organization initially called the Ladies Hermitage Association. It seems improbable that Polk Place would have drawn the same level of interest. Nostalgia and sentimentality have their financial and practical limits.

The property finally fell victim, not simply to Mr. Polk’s malpractice, but to hubris, naivety, and greed. He was, you should know, the first President to have been greeted upon entering a room to “Hail to the Chief,” a suggestion of his wife. He wrote his will in the final days of his presidency. He may have believed that his fame and the loyalty of his followers would not let his final home fall into the hands of a rich man from Philadelphia who would tear it to the ground. But that is what happened.

Dickinson sold the property for a 50% profit in two years. The steel executive from Pennsylvania razed the

house and built two apartment buildings. By 1947, no less an organization than the YWCA pulled down what would today be historic and high-priced condominiums for a parking lot. n

GARY BLACKBURN

is an attorney with The Blackburn Firm. His practice primarily in¬volves Business and Civil Rights Litigation, Mediation, Employment Law, and Medicare and Medicaid Fraud.

Endnotes

1 Eagle v. McCoy, 143 Tenn. 693, 228 S.W. 709 (S. Ct. 1920)

2 Jacob McGavock Dickinson was a significant Nashvillian. A Confederate veteran, he graduated from the University of Nashville, studied law, and was admitted to the bar in 1874. He was a member of the Tennessee Supreme Court when Mrs. Polk died, taught law at Vanderbilt, represented railroads, and was president of the American Bar Association. William Howard Taft appointed him Secretary of War in 1909.

2 The Watauga Flats building, however, still stands today as a condominium and short-term rentals.

VOLUNTEER FOR

DIAL-A- LAWYER

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@ nashvillebar.org. Pro Bono credit applies, and a complimentary dinner is provided.

Thank you to our December volunteers!

GINA CRAWLEY

CHRIS HUGAN

TOM LAWLESS

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

TUESDAY, FEBRUARY 22 | VIRTUAL SEMINAR

Tennessee’s self-defense laws have been the subject of several recent changes in both statute and case law. Join Judge Steve Dozier and Bob Allen as they provide a legal review of the latest trends, as well as discuss how police officers and civilians are taught about the laws and practicalities of self-defense.

PRESENTERS

Honorable Steve Dozier Davidson County Criminal Court, Division I Bob Allen Director of Training for Royal Range USA Former SWAT Team Instructor

3:00 – 4:00pm

WEDNESDAY, MARCH 2 |

HYBRID SEMINAR

COURT PRACTICE BEFORE THE BUSINESS COURT PILOT PROJECT OVERVIEW

This seminar will discuss practice in Davidson County Chancery Court Part II in cases pending on the Business Court Docket. Chancellor Martin will address the categories of cases that are and are not appropriate, the procedures for seeking designation on the Business Court Docket and the practices governing management of cases assigned to the Business Court Docket.

PRESENTERS

Chancellor Anne C. Martin

Davidson County Chancery Court

Tim Warnock

Riley Warnock & Jacobson

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

TUESDAY, MARCH 15 | HYBRID

SEMINAR

BUSINESS COURTS FROM TENNESSEE TO DELAWARE

OVERVIEW

Join Vice Chancellor Joseph Slights III of the Delaware Court of Chancery and Chancellor Anne Martin of the Chancery Court of Davidson County, Tennessee as they discuss the national business court movement as well as best practices for attorneys with business disputes. The Judges will also discuss substantive issues related to the COVID-19 Pandemic as they have impacted business disputes.

PRESENTERS

Chancellor Anne C. Martin Davidson County Chancery Court

Vice Chancellor William Slights Delaware Court of Chancery DETAILS

12:30 – 1:30pm

1.0

&

MONDAY,

MARCH

28 | HYBRID SEMINAR TRUSTS PRIMER

In this seminar, elder law attorney Travenia Holden will provide attendees with the basics of different types of trusts and how to use them. It will address everything from basic estate planning trusts to special needs trusts to Medicaid trusts.

PRESENTER

Travenia Holden Holden Law

12:00 – 1:00pm

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

TUESDAY, MARCH 29 | LIVE SEMINAR

WHAT THE CONSTITUTION MEANS TO ME

OVERVIEW

Unlike other legal authorities that lawyers routinely cite and debate in court, the Constitution is also a cultural artifact and a lightning rod of political debate. The play What the Constitution Means to Me is an example of the kind of popular engagement with the founding document that often excites audiences- even as it may frustrate lawyers for bypassing legalistic norms of interpretation and argument. This seminar will discuss the history of the Constitution not just as a legal document but also as a cultural and political symbol.

This seminar will be followed by dinner and a happy hour, prior to attending the play at TPAC.

PRESENTER

Sara Mayeux Vanderbilt Law

DETAILS

– 6:00pm

DO YOU HAVE AN IDEA FOR A CLE?

The NBA is asking for your help!

We are inviting members to join the CLE Committee for 2022. We ask that committee members attend four to six meetings per year, and contribute to the planning and production of our seminars.

If you cannot serve on the committee but have ideas for a seminar, let us know!

Our goal is to help further legal education in areas our members want to learn more about. If you are interested in joining the committee or have a potential CLE topic, please email Cameron, our CLE Director at Cameron.Adkins@nashvillebar.org

BILL & PHIL’S GADGET OF THE MONTH

Windows 11 |

Bill Ramsey & Phillip Hampton

(continued from page 13)

Windows 11 is the new ability to create custom layouts with multiple windows open on our desktop. The ability to “snap” windows into certain areas of the screen was present in Windows 10, but to do so was a little clumsy, so we rarely used it. With Windows 11, you can very easily create various configurations for your open screens simply by hovering the cursor over a window’s maximize/ minimize button. It is hard to describe but very easy to use, and we have been using it abundantly to reclaim wasted real estate on our desktop.

Another feature we noticed right away was the inclusion of a Microsoft Teams icon automatically on the taskbar. The use of Teams exploded over the past two years with the increase in remote work and remote meetings. Microsoft has now subtly included a Teams link automatically with a Windows 11 installation. Will this persuade people to discard Zoom for Teams? We don’t know. Maybe.

Another new icon on the taskbar lets you easily create multiple desktop instances on your PC. Again, the ability to create

multiple desktops running at the same time is not new. Microsoft has just made it very easy to do. With so many people working remotely, one great “use case” for multiple desktops is to have one desktop dedicated to “work” and another dedicated to “home” use. We also have a third desktop dedicated to “play,” but we won’t elaborate on that one.

So, after we recovered from our initial shock that Microsoft misled us back in 2015 with all the “last version” of Windows talk, we have begun to get familiar with (and even like) many of the new things in Windows 11. Now, where is that Start menu again?

- Bill & Phil n

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

David Anthony

Gail Ashworth

Laura Baker

Daniel Berexa

Michael Berman

Mark Beveridge

Joe Binkley

Melissa Blackburn

Charles Bone

Josh Brand

C. Dewey Branstetter

Joe Brown

Kenneth Byrd

Christopher Cardwell

Loy Carney

Mark Chalos

William Cheek

Daniel Clayton

Seth Cline

Todd Cole

Christopher Coleman

Grover Collins

John Day

Joy Day

Jacqueline Dixon

Keith Frazier

Barry Gammons

David Garrison

Andy Goldstein

John Griffin

William Harbison

Marian Harrison

Aubrey Harwell

Trey Harwell

Lisa Helton

John Holt

Lloyd Houk

Paul Housch

Joseph Hubbard

R. Jan Jennings

Andrew Kaufman

Jordan Keller

Christopher Kelly

John Kitch

William Koch

Irwin Kuhn

Edward Lanquist

Thomas Lawless

Wendy Longmire

Christina Lopez

Randal Mashburn

Sam McAllester

Amanda McClendon

Carol McCoy

Bob Mendes

Margaret Moore

Patricia Moskal

Phillip Newman

Andrew Noell

Mattison Painter

David Parsons

Gregory Pease

Andrea Perry

Tracy Powell

David Raybin

Nathan Ridley

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Carolyn Schott

Joseph Shelton

Kimberly Silvus

Martin Sir

Elizabeth Sitgreaves

Ronald Small

Eric Smith

Laura Smith

Saul Solomon

Kimbra Spann

John Spragens

Joycelyn Stevenson

Michael Stewart

Gerard Stranch

James Stranch

Aleta Trauger

Howard Vogel

Michael Wall

Elizabeth Washko

Jim Weatherly

Thomas White

Thomas Wiseman

Talley Wood

Edward Yarbrough

Bill Young

Stephen Young

Gulam Zade

Stephen Zralek

TENNESSEE CHAPTER

Gayle MALONE, Jr. (615) 651-6700

Matt SWEENEY (615) 726-5774

Dan NOLAN (931) 647-1501

John TARPLEY (615) 259-1366 Mark TRAVIS (931) 252-9123 Jack WADDEY, Jr. (615) 850-8752 David NOBLIT (423) 265-0214 Barry L. HOWARD (615) 256-1125

Gail ASHWORTH (615) 254-1877 John BLANKENSHIP (615) 627-9390 Paul DeHOFF (615) 631-9729 James KAY (615) 742-4800

Tracy SHAW (615) 921-5204

RUSSELL (615) 815-0472 Mark LeVAN (615) 843-0308 Kreis WHITE (615) 309-0400

Capitol Notes | Peggy Sue, the Beagle Hound

Bigger Pile of Money than a Show Dog Could Jump Over.

Regular Annual Session Has Begun.

With the words, “Mr. Sergeant at Arms, Invite the members into the chamber and close the doors,” House Speaker Cameron Sexton of Crossville and Lieutenant Governor and Senate Speaker Randy McNally of Oak Ridge began the 2022 regular legislative session, the second of our 112th General Assembly. Legislative leaders quickly revealed their redistricting plans in response to the new federal census numbers. Generally, the population growth of Metropolitan Davidson County and the surrounding suburban counties have exceeded that of the other counties, so those rapidly growing areas will receive new state legislative districts to the detriment of communities of low or negative growth. Tennessee has 31 negative growth counties in the 2020 census, and all of those are rural.

Goals.

Not surprisingly, the General Assembly sliced up the former Fifth Congressional District and shared Davidson County with other districts while creating a new Fifth District with another slice of Davidson County. We are reminded of the words of Memphis attorney, John Ryder, who while consulting on the State Senate Republican redistricting maps noted that “Greed is the enemy of

good redistricting.” While diluting the impact of one consistently Democratic seat, the risk, and the greed, rest in greatly moderating the three new districts. Time will tell.

Big Piles of Money.

While biscuit hunting, we learned of many legislative fundraisers being conducted in the last few days and even hours before the General Assembly convened. In a significant reform 27 years ago, the legislature prohibited political fundraising during a legislative session. Many members drive into Nashville on the Monday before the annual session typically begins and that 24 hour period is a target rich environment for political fundraising. Both House Speaker Sexton and Senate Speaker McNally conducted an event, as did Governor Lee in the last hours before the session began at noon on Tuesday, January 11. Speaking of money, state revenues for the 2021-2022 fiscal year are also providing an embarrassment of riches. The most recent monthly collections came in at $286.5 million more than the budgeted estimate.

Crystal Ball.

The 2022 regular legislative session is expected to run through late April or early May. We see some fatigue in our legislative friends after having three extraordinary sessions in 2021. After the redistricting bills are done, the General Assembly has to pass one bill and that is a balanced state budget. We also expect the General Assembly to revisit the COVID statutes that were enacted with very little public input during the October special session. Who would have thought that a business friendly legislature would permit an employee who quit working to draw unemployment compensation for refusal to be vaccinated…? The K-12 education funding formula with its litigious history has drawn the attention and focus of Governor Bill Lee. House Majority Leader William

Lamberth of Sumner County will nudge the Governor to work on sentencing reform with a possible abolition of our parole system.

Judicial Elections.

Candidates for state trial court positions and general sessions court positions were eligible to pick up qualifying petitions from the election commission office for the May 3, 2022 primary on Monday, December 20, 2021. The campaign financial disclosure reports that were due by January 31, 2022, make for interesting reading for political nerds and some dogs. The qualifying deadline is noon on Thursday, February 17, 2022.

Calendar Notes.

Congratulations are in order for Sarah Campbell of the State Attorney General’s Office, whom Governor Lee has appointed to the Tennessee Supreme Court. She will face confirmation by the General Assembly, and that is expected to be uneventful.

Do not be surprised to see new Tennessee license plates in 2022. The first ones were issued on January 3. The new dark blue background plates will be available online, by mail, or in person as each motor vehicle owner completes his or her annual renewal in the designated renewal month.

The deadline for the introduction of general bills for the 2022 regular session was the close of business on February 3 in the Senate and February 2 in the House.

State and NBA offices will observe the Presidents Day holiday on Monday, February 21. n

PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

John Lewis & the Nashville Sit-Ins: Beyond the 5th Avenue Lunch Counters

John Lewis came to Nashville to attend Fisk University and American Baptist College. He quickly became a local and national leader of the Civil Rights Movement, which used nonviolent sit-ins and marches to change the Jim Crow laws. On February 27, 1960, Lewis and almost 200 students were arrested for sitting at the segregated lunch counters on 5th Avenue (now renamed Rep. John Lewis Way). He was handcuffed, loaded into a paddy wagon, and taken to jail. The students were charged with disorderly conduct, disturbing the peace, and resisting arrest while trying to sit and eat at the all-white lunch counters.

The students were represented in court by a dream team of local African American lawyers, including Z. Alexander Looby, Avon Williams, Jr., Sr., Adolpho A. Birch, Jr., Coyness Ennix, and Robert Lillard. These lawyers raised constitutional issues in this first of many cases where the students went to court in Nashville.

The next month, on April 19, 1960, at 5:00 am, the home of lead attorney and City Councilman Z. Alexander Looby was

bombed. The massive explosion blew off the front of his house (Looby and his wife were not injured because they were in the rear of the home at the time.)

Word about the bombing quickly spread through the historically black college campuses in Nashville. That afternoon, 4,000 students marched to City Hall where Fisk University student Diane Nash confronted Mayor Ben West and asked if segregation at the lunch counters was right. Mayor West said it was not, and the 5th Avenue lunch counter segregation soon ended.

But that did not end segregation in all Nashville eating establishments. While African Americans could now get service at the four lunch counters on 5th Avenue, establishments located just one block away on 6th Avenue and on Church, including B&W Cafeteria, Cross Keys, Candyland, and Tic-Toc, all still excluded this group from dining in their restaurants.

Neither did Lewis end his marching and sit-ins after the Woolworth victory. He was arrested another eight times in

Nashville using the nonviolent protest methods he learned here.

The most significant of these arrests happened on Sunday, October 21, 1962, when Lewis and seven other students went after church services to the B&W Cafeteria on 6th Avenue. The popular establishment had recently hired a doorman to block all African Americans from entering the restaurant. When the students arrived, the doorman told them they could not enter. The students said, “we are coming in and are going to eat when we get in.” The students were arrested.

The case was heard by an all-white jury, which convicted all eight students, fined them $50 each, and sent them to the Davidson County Workhouse for 90 days. Attorneys Looby and Williams immediately appealed the decision. The Tennessee Supreme Court affirmed their convictions on January 8, 1964.1

Chief Justice Hamilton Burnett’s opinion held “the securing of constitutional rights must be done in a lawful man(continued on page 23)

Editorial | John Lewis &

ner,” and the students “cannot interfere with B&W’s trade by blocking the latter’s entrance in order to redress a wrong that they feel that the cafeteria has visited upon them.”2 The opinion did not address Looby and Williams’ arguments about the violation of the students’ civil rights and their access to public accommodations.

The Tennessee Supreme Court also upheld the use of an all-white jury, citing Kennedy v. State, 210 S.W.2d 132 (1947).3 Ignoring Looby and Williams’ evidence and arguments that members of the jury said they held racial bias, the court ruled “no such discrimination is shown in this case.”4

Looby and Williams appealed the ruling to the United State Supreme Court, which heard the case on March 8, 1965.

Attorney James Nabrit III of the NAACP Legal Defense Fund argued the case in front of the Court, with briefs provided by Looby, Williams, Constance Baker Motley, Jack Greenberg, and Charles Black, Jr. Assistant Attorney General Thomas E. Fox argued the case for the State, and Attorney General George McCanless provided a brief for the State.

The United States Supreme Court overturned the convictions based on its decision in Hamm v. City of Rock Hill, which was based on the newly passed Civil Rights Act of 1964 that banned discrimination in restaurants and hotels.5 Like the

Hamm decision, the justices in McKinnie were divided 5-4, with the majority holding the convictions should be thrown out even though the sit-ins took place prior to passage of the Civil Rights Act.6

Although it may be overshadowed by the United States Supreme Court’s landmark decision in Katzenbach v. McClung, 7 the McKinnie ruling is still notable as it affirmed John Lewis’s first acts of “Good Trouble”—helping to successfully integrate lunch counters and restaurants in Nashville. n

Endnotes

DAVID EWING is a ninth generation Nashvillian and historian. In 2016, he located the lost mugshots of John Lewis’ first arrests in Nashville.

1 See McKinnie v. State , 379 S.W.2d 214 (Tenn. 1964).

2 Id. at 221.

3 See id. at 220.

4 Id.

5 McKinnie v. Tennessee, 380 U.S. 449, 449 (1965) (relying on Hamm v. City of Rock Hill , 379 U.S. 306 (1964)).

6 See id .; see also Hamm , 379 U.S. at 312-17.

7 379 U.S. 294 (1964).

YLD Mural Project

The YLD will be hosting an event for donors to meet Omari Booker and view his artwork as well as the artwork of Henry L. Jones at the Kindred Links exhibit on display at the Parthenon on February 3, 2022 from 5:30 pm to 7:30 pm. This reception will be for donors only and will allow attendees to hear from these two artists. To receive an exclusive invitation and other benefits, we have several sponsorship opportunities available.

(continued from page 22) To become a sponsor, please visit NashvilleBar.org/YLDMuralProject .

SPICY THAI SHRIMP

(COPYCAT BANG BANG SHRIMP)

Ingredients

For The Shrimp

1lb of shrimp peeled and deveined

Salt and pepper to taste

Vegetable oil for frying

1 cup of milk (whole milk or butter milk)

½ cup of cornstarch

¼ cup panko breadcrumbs

Non-stick cooking spray

For The Sauce

1 cup of mayonnaise

¼ cup of chili garlic sauce

2 teaspoons of sriracha

1 teaspoon of smoked paprika or cayenne pepper

2 teaspoons of honey

For the Garnish

Green onions or parsley

Directions

In a mixing bowl, add mayonnaise, chili garlic sauce, sriracha, smoked paprika, and honey and stir. Cover and place to the side.In another bowl, add milk and drained shrimp. Season with salt and pepper to taste. Coat shrimp with milk.

Frying instructions:

In a medium frying pan, add olive oil and heat to 375 degrees. Check temperature by lightly flicking water

In a small bowl, add cornstarch, panko bread crumbs, and paprika. Coat shrimp.

Fry shrimp 1-2 minutes on each side or until lightly browned. Drain and mix with sauce. Garnish. Serve while hot. Can be paired with rice or pasta, added to tacos, and eaten as an appetizer.

Sautéing instructions:

In a medium saucepan, coat with cooking spray. Add shrimp. Cook 1-2 minutes on each side.

Mix with sauce and stir. Garnish. Serve immediately. Can be paired with rice or pasta, added to tacos, and eaten as an appetizer.

Editorial | Cynthia C. Chappell and Josh Brand

Is Your Tennessee Teen a Mature Minor?

Tennessee children are legally allowed to make a variety of medical decisions for themselves. A teen has the right to be treated for a sexually transmitted disease without parental consent. 1 A child may seek prenatal care without a parent’s knowledge or consent. 2 A teen may also be able to make mental health care decisions, including taking medication, without his or her parent’s knowledge or consent. 3 This specific decision-making authority is provided by statute. While the common law rule requires parental consent for a child to obtain medical treatment, these legislative exceptions follow the general theory that public and individual health concerns, and to some degree autonomy over one’s own body, override the necessity for parental consent.

Another doctrine of medical decision making has recently garnered significant media attention: the “Mature Minor” doctrine. This doctrine creates a presumption that mature teenagers can make medical decisions, and consent to treatment, for themselves. The availability of COVID vaccines for children over age 12 raised questions about the application of the Mature Minor doctrine in Tennessee. This doctrine does not undermine the parent-child relationship; instead, it has long ensured medical providers’ ability to make the best decisions for their patient: the child. The doctrine works in conjunction with the other statutes giving minors medical decision-making authority.

The seminal case : The Mature Minor doctrine was first articulated in Cardwell v. Bechtol 724 S.W.2d 739 (Tenn. 1987)

when Dr. Bechtol, a blind but licensed osteopath, treated Sandra Cardwell, a minor, for back pain without her parents’ consent. Sandra, with her parents’ knowledge and support, had received a diagnosis from another physician that a herniated disk caused her back pain. Surgery was recommended, but Sandra and her parents wanted to avoid surgery.

A month following the surgery recommendation, Sandra left school early in her mother’s car to see her family physician for treatment of a sore throat. She spontaneously decided to visit Dr. Bechtol, who she knew had treated her father for his back pain. She did not tell her parents or ask their permission. Due to his blindness, Dr. Bechtol limited his treatment of patients to manipulative treatments to adjust or realign the skeletal system. Sandra told Dr. Bechtol that her father was a patient and explained why she was there. Dr. Bechtol, alone in his office, listened to Sandra’s list of symptoms and the diagnosis of the specialist she had seen. After a brief examination he concluded that she did not have a herniated disk. He treated her briefly with neck, spine and leg subluxation. Sandra experienced severe pain the remainder of the day and was hospitalized, ultimately undergoing a laminectomy. She subsequently suffered bladder and bowel retention, difficulty walking, and decreased sensation in her legs and buttocks that persisted at trial.

Dr. Bechtol was sued for medical malpractice, battery (failure to obtain parental consent), negligent failure to obtain (continued on page 32)

Annual Meeting & Banquet | December 2021

Annual Meeting & Banquet | December 2021

Annual Meeting & Banquet | December 2021

10 Things You Don’t Know About 2022 NBA President, Martesha L. Johnson

We had the opportunity to talk with our new NBA president to get to know her better. We are excited about her leadership this year.

Which living person do you most admire?

Stacey Abrams-her continued dedication to the causes of equity and voter rights, despite many obstacles, is inspiring.

What is your current state of mind?

Despite all of the seeming craziness of the world, I am doing well. The pandemic has been tough but it has also required me to sit with myself and be mindful of the things I need for self-care. My focus for the moment is practicing intentional self-care. I’ve been blessed with so many opportunities, and while I am incredibly thankful I am also incredibly busy. Juggling leadership and motherhood/family can be overwhelming, so my current challenge is to find ways (even small ones) to reflect and renew. Self care is the best gift we can give ourselves!

What do you consider the most overrated virtue?

Patience, probably because it’s the most challenging one to exhibit at times.

Which talent would you most like to have?

I would love to master ballet en pointe. However, with my knees, I’ll probably stick to admiring this beautiful art from afar.

What do you consider your greatest achievement?

My greatest achievement to date has been choosing to

face my fears and step out into my leadership calling. Though I enjoy trial work (and a good debate), I am very introverted and extremely hard on myself. When the opportunity to be the public defender presented itself, my fear almost kept me from achieving my goal. I’m super proud of myself for saying yes when my insecurities said no!

What is your most treasured possession?

My most treasured possession is my Aquaphor!!! I never leave home without it. (I am obsessed with moisturizing…) No, seriously, my most treasured possessions are the clothes I brought my children home from the hospital in.

What do you most value in your friends?

I value the freedom to just “be!” My friends just get me. Their loyalty, love, and laughter are critical parts of my life. I always look forward to girls night!

Who are your favorite writers?

I’ve loved Mildred Taylor’s books since childhood, Ta-Nehisi Coates, and Maya Angelou.

Who are your heroes in real life? Moms (specifically my Mom) and the public defenders I get to work with everyday.

What is your motto? Live. Love. Laugh.

Battle of the Pros

iPad Pro 12.9 vs iPad Pro 9.7

We love to buy gadgets as soon as they hit the market. We are fully aware that you pay extra for being an early adopter. Guess we enjoy being broke (and also being the first kids on the block with the new toy). So, it should come as no surprise that we bought Apple’s big screen 12.9 iPad Pro as soon as it hit the market.

consent, and failure to obtain informed consent. At the conclusion of the proof, the malpractice case was dismissed. The remaining issues were sent to the jury with the Dr. Bechtol’s requested instruction regarding the mature minor exception to the requirement of parental consent. A verdict was returned for Dr. Bechtol. The appeals court reversed on the issue of battery, ruling that there was no statute or case law to rebut the established common law rule that a physician cannot treat minors without parental consent. Dr. Bechtol appealed.

The iPad Pro 12.9

The proof had established that Sandra was a seventeen-year-old high school senior at the time of treatment, was considered a very mature child by her parents and others, was allowed to go to her family doctor alone for treatment, was often entrusted with the family vehicle, and was planning to attend college. She testified that she was not treated against her will. Dr. Bechtol testified that generally parents would accompany minors when they came to him for treatment. Based upon her statements and conduct, he believed her to be of age and that further inquiry was not necessary.

pose of having an iPad. (At least we felt that way after we bought it.)

The Rule of Sevens : The Court recognized that minors achieve varying degrees of maturity and responsibility, and this understanding had been part of the common law for over a century. The rule of capacity has been sometimes known as the Rule of Sevens: a child under the age of seven has no capacity; a child between seven and fourteen has a rebuttable presumption of no capacity; a child between age fourteen and twenty-one has a rebuttable presumption of capacity. 5

The 12.9” display is so large you really need to carry it in a laptop bag, and it just does not have the portable, compact feel that made the original iPad and its successors so popular. So, while the iPad Pro 12.9 is powerful and has a great deal of potential—especially for graphic designers and media creators— it is not a laptop killer in our opinion.

The iPad Pro 9.7

In determining that Sandra had capacity to consent, the Court noted, “[a] minor acquires capacity to consent at different stages in his development. Capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits.”

tional attention as Tennessee parents loudly voiced their opinions. The government responded swiftly – first with Governor Lee’s Executive Order, allowing parents to opt out of school mask requirements, and later with a special session resulting in legislation prohibiting mask requirements in schools except under “severe conditions” during a Governor declared COVID emergency. The Governor contemporaneously ended the COVID-19 state of emergency in Tennessee and it has not been reinstated despite another surge in illness due to the Omicron variant.

cameras. Yes, you can take great selfies and great pictures with the high-resolution camera that comes with it. Yes, you can even record videos in 4k resolution.

Nevertheless, for just regular users it is very hard to tell the iPad Pro 9.7 apart from the iPad Air. The displays are nearly identical. They run the same software. They use the same apps. There just does not seem to be a great advantage to having an iPad Pro 9.7 versus having a regular iPad (especially the sleek iPad Air 2).

The Plaintiffs argued that because the legislature had addressed medical treatment of minors in some contexts without parental consent but had not enacted a statute to address the specific issue at hand, the law of the State required parental consent. 4

In this case of first impression, our Supreme Court disagreed. Tennessee is a common law state they opined, “… however, judicial development of the common law is not arrested by piecemeal legislative adoption of specific statutory exceptions to a general common law rule.”

We must admit, we were a bit disappointed when we started fooling with it. Yes, the iPad Pro 12.9 was the biggest, fastest Apple tablet ever made. You can buy a really nice keyboard to go with it, and we did. You can also buy a pressure-sensitive stylus/pencil to take notes, sketch, and really create great art. We bought that too. The giant screen is beautiful, and the quad speakers are incredible. The large screen really works well with split screen apps that are now available in the new iOS 9 series. You can watch movies on the right-side of your screen and edit documents on the left, for example. In other words, you can play and work at the same time; which we don’t necessarily recommend but do occasionally enjoy. But, we were not as overjoyed with our new pricey toy as we thought we would be. First, by the time we added additional storage, a cellular modem, a Bluetooth keyboard, and the pencil, the price tag was creeping up north of $1,200. For that price we could buy a very nice fully functional laptop (keyboard included). In addition, the large size makes the iPad Pro 12.9 seem less portable. Its size almost defeats the pur-

We’re not sure if the Apple execs heard our complaints about the 12.9 iPad Pro, but we took it as a nod in our direction when they subsequently announced a smaller iPad Pro, the 9.7. Gadget nerds like us and our money are soon parted. So, when the new iPad Pro 9.7 became available, we had to buy one immediately, as well. And, as usual, we were excited in anticipation of delivery of our new gadget. We were certain that the new, smaller iPad would be more portable and more in line with the iPads we had come to know and love, while providing all the “Pro” advantages. Unfortunately, we had become spoiled.

Adopting the Doctrine : The Court reasoned that the Mature Minor doctrine was consistent with the evolution of the common law and violated no legislative policy. Since the presumption was rebuttable there was little chance “the exception will swallow the rule.” The Court made clear that absent a specific statute allowing or prohibiting certain medical treatment, whether a child is a mature minor is a decision that will be made by the health care provider and will depend upon the child’s age, ability, level of maturity, conduct at the time, the nature of the potential treatment and its risks, the child’s ability to appreciate the risks and consequences, and other facts specific to the child’s situation.

After using the iPad Pro 12.9, the screen on the 9.7 seemed tiny (yes, we know we complained that the 12.9 was too big; forgive us for being tech divas). With the 9.7 we began to feel like we were just looking at an iPhone screen. In fact, it was very hard to tell the difference between a regular iPad or iPad Air 2 and the iPad Pro 9.7. Yes, the iPad Pro 9.7 has a faster, more power processor than the iPad Air 2. Yes, Apple has updated the iPad Pro

On the Horizon : As the Delta variant surged in the fall of 2021, schools struggling to reopen safely for in-person learning implemented mask mandates as a critical safety protocol. These masking requirements generated ferocious controversy which garnered na -

iPad Pro 12.9 v. iPad Pro 9.7

Tennessee’s new legislation was promptly challenged by parents of public-school students with disabilities citing failure to comply with the Americans with Disabilities Act, and the State is currently temporarily blocked from preventing schools from issuing mask mandates. The State has appealed the preliminary injunction and temporary restraining order to the U.S. Court of Appeals for the 6th Circuit.

It is unclear whether Tennessee’s new law, if upheld, would allow mature minors to don a mask absent parental consent, or, whether parents could prohibit their mature minor from wearing a mask (at school or elsewhere), although under a public and personal safety analysis the answer would seem to be that a mature minor could make her own decision.

Cardwell remains good law today. In the political uproar over the implications of the Mature Minor doctrine this year, there was little discussion of the requirement that physicians must consider the circumstances of each patient individually. Not every teenager will qualify as a “mature minor.” But there

Returning to the comparison of the iPad Pro 12.9 to the iPad Pro 9.7 (yes, we got a bit sidetracked), we believe the iPad Pro 12.9 is actually a superior product. The high resolution and the four-speaker system take greater advantage of the faster processor and superior display on the iPad Pro models. In addition, you have more screen real estate to use the split screen feature that is bundled into iOS 9—now 9.3.1. Of course, you can use the split screens feature on any iPad, but it just works better on the larger screen. Th e bottom line is that while the 12.9 iPad Pro is a bit more cumbersome to carry, you get spoiled once you have used the larger screen. You do not want to return to a smaller iPad model. So, in our opinion, the iPad 12.9 is the winner (but barely) over the iPad Pro 9.7 or just a regular iPad. But, here is a word to the wise and thrifty. If you are not a spendthrift like us, our best advice is to buy neither “Pro” model and stick with an iPad Air 2. Save your money.

(continued on page 33)

are likely many sophisticated, intelligent, independent teens who would be judged capable of making their own medical decisions, including vaccinations. It is important to understand the nuances and reasoning behind the mature minor doctrine and how it allows health care providers to maintain the highest standard of care. n

CYNTHIA C. CHAPPELL most recently served as Chair of the NBA CLE Committee. She regularly handles criminal charges, orders of protection hearings, contempt hearings, and matters that arise when a civil case involves the criminal justice system. She is a Fellow of the Tennessee and Nashville Bar Foundations. A three-time recipient of the Best of the Bar in family law by the Nashville Business Journal, Cindy is also an Emeritus member of the Harry Phillips Inns of Court.

Endnotes

JOSHUA BRAND ’s practice frequently includes the intersection of criminal, family, and civil law. He is a fellow of the Nashville Bar Foundation. When he’s not helping people, you can find him playing the banjo.

1 Tenn. Code. Ann. § 68-10-104 (c )

2 Id. § 63-6-223

3 Id. § 33-8-202

4 The legislature had enacted certain laws dealing with minors, including, Tenn. Code Ann. §§ 68-34-104 (contraception “procedures, supplies and information shall be… available… regardless of…age…), § 68-34-107 (contraceptive supplies and information may be furnished to…any minor who is pregnant, a parent, or married…) § 63-6-220 (treatment of juvenile drug abusers), § 63-6-222 (emergency treatment of minors).

5 Except as it relates to consumption or possession of alcohol, the age of majority in Tennessee is now 18 down from 21.

Valuation, litigation, forensic and mediation support services require an independent and objective assessment. Price CPAs has assisted in cases involving these services.

THESE SERVICES INCLUDE:

• Minority shareholder disputes

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LAWYER REFERRAL & INFORMATION SERVICE

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:

For information on joining the LRIS, contact LRIS@ nashvillebar.org. We look forward to hearing from you!

Hearsay | Honors & Awards, On the Move,

HONORS & AWARDS

Dickinson Wright PLLC is pleased to announce that Jeffrey M. Beemer and M. Reid Estes, Jr. in the firm’s Nashville office have been included in the 2021 Mid-South Super Lawyers. Joshua Burgener and Colin Ferguson, also in the Nashville office, are included in the 2021 Mid-South Super Lawyers Rising Stars.

ON THE MOVE

Bradley Arant Boult Cummings LLP is pleased to announce that Kelley Meyerriecks has joined the firm’s Nashville, TN, office as a senior attorney. Meyerriecks will practice as part of the firm’s Real Estate team. Meyerriecks drafts, negotiates and administers contracts for land leases, track leases, right of entry, and utility crossing licenses by collaborating with a range of clients, including Fortune 500 companies, individuals, and governments.

Stites & Harbison, PLLC announces the addition of Thomas A. Dozeman . Dozeman joins the Nashville, Tenn. Office as a member of the Business Litigation Service Group. He earned

his J.D. from Vanderbilt University Law School in 2021. Dozeman was a Dean’s Scholar at Vanderbilt and the managing editor of Vanderbilt Journal of Entertainment and Technology Law. He served as Circuit President of the Vanderbilt Law School Co-Counsel Mentoring Program.

Miles McDowell joins Lewis Thomason as an associate attorney in the firm’s Nashville office. McDowell practices in the areas of General Civil Litigation, Transportation, Products Liability, Criminal Defense, Family Law, and Sports and Entertainment. McDowell graduated from the University of Tennessee College of Law where he served as Vice President of the Sports and Entertainment Law Society, Treasurer of the Marilyn Yarborough Chapter of the Black Law Student Association, and as a Diversity and Inclusion Fellow. McDowell was the 2021 recipient of the James Powers Award in Criminal Advocacy and the Julian Blackshear Outstanding Student Award.

Baker Donelson has added 3 new associates in its Nashville office, Abby Parker Nix , Tyler Saenz , and Keyne Villert . Nix previously served as a pro bono fellow and summer associate for the Firm, while Villert worked for a law firm in New York City and served

as counsel for a large title insurance underwriter. Saenz helps public and private clients develop, protect, and grow their businesses.

Ford Harrison LLP announces that Paige Lyle has joined its Nashville office. Lyle counsels clients from corporations and governmental entities to small family-owned businesses on the day to day legal ramifications of managing a workforce.

Hall Booth Smith, P.C. is pleased to welcome Tanner W. Yancy as an Associate to its growing office in Nashville, Tennessee. Tanner focuses his practice on healthcare litigation, transportation, insurance coverage, intellectual property, and general liability disputes.

Kay Caudle has joined the Silicon Valley-based firm, Scale, LLP, as Counsel. Kay is a member of the firm’s Corporate & Securities practice group where she supports growth-oriented companies through every aspect of the business cycle, providing commercial contract, employment, privacy, and outside general counsel advice. Prior to joining Scale, Kay was General Counsel for STR, LLC, for fourteen years.

Hearsay |

Honors & Awards, On the Move, Firm News

Ann Pruitt , Executive Director of Tennessee Alliance for Legal Services will leave her role on March 31, 2022, after nearly nine years of service to the Tennessee Access to Justice community. In addition to leading TALS, Pruitt served on the Tennessee Supreme Court’s Access to Justice Commission from 2013 to 2020, where she co-chaired the Public Awareness Committee from 2013-2018 and served as Vice Chair of the Commission in 2019. She is a co-founder of the Tennessee Bar Association’s (TBA) Corporate Counsel Section and long-time member of the TBA’s Access to Justice Committee, which she currently chairs.

FIRM NEWS

Sherrard Roe Voigt & Harbison is pleased to announce Andrea Sinclair ’s elevation to member. Through her trusts and estates practice, Sinclair works with clients to plan for life’s joys, challenges, and transitions. Sinclair drafts wills, powers of attorney, living wills, prenuptial and postnuptial agreements, and a variety of trusts and other tax-efficient vehicles related to wealth enhancement and transfer. Her representation often involves coordinating clients’ corporate, non-profit, and real estate transactions and litigation. Sinclair also manages the administration and litigation of trusts, probate estates, guardianships, and conservatorships and counsels executors, trustees, guardians, and conservators on their fiduciary duties.

William “Jay” J. Harbison II , Erik C. Lybeck and Mozianio “Trey” S. Reliford III have been elected partners at Neal & Harwell, PLC. Harbison joined the firm in 2015 and his practice focuses on business and civil litigation. Lybeck joined the firm in 2016 and has a practice focused on complex litigation, including business torts, eminent domain, governmental liability, entertainment litigation and white-collar criminal cases. Reliford has been with Neal & Harwell since 2019, with his practice focusing on complex commercial litigation, entertainment law, white-collar and regulatory defense, securities litigation, and crisis management.

Gullett Sanford Robinson & Martin PLLC attorney M. Thomas McFarland has been elected to member level in the firm. Thomas is a member of the firm’s Litigation section. His practice involves commercial litigation in the areas of business torts, breach of contract claims and real estate.

Nationwide employment law firm Jackson Lewis P.C. is pleased to announce the firm opened its 63rd office in Nashville, Tenn., and added four new principals. Stephen Price will lead the Nashville team. n

Mark Your Calendar

the

Apr 23 | NBF Fellows Dinner @ Loews Vanderbilt Hotel

May 6 | Law Day @ Rennaissance Hotel

May 19 | NBA+NBF Golf Tournament @ Hermitage Golf Course

May 26 | Spring Memorial Service

@ Downtown Presbyterian Church

Visit Nashvillebar.org/Calendar for details and more.

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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!

Baker Donelson

Blink Law, LLC

Bradley

Branstetter, Stranch & Jennings, PLLC

Brewer, Krause, Brooks & Chastain, PLLC

Butler Snow, LLP

Cole Law Group, P.C.

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Patterson Intellectual Property Law, PC

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