Is Anybody There?

By Chief Judge Kenneth Switzer, Nashville

In the Broadway play “1776” about the events leading up to the signing of the Declaration of Independence, John Adams and his wife, Abigail, have a repeating dialogue by letter where each describes what’s happening in their lives. Abigail needs pins for sewing, and John needs saltpeter for making gunpowder. But John, thinking he is alone in his pursuit of independence, has the constant line, “Is anybody there; does anybody care?”

I’m not on the Appeals Board. I’m just a trial judge who reads Appeals Board opinions. I surmise the Appeals Board judges often think similarly to President Adams. Here’s why.

The original Appeals Board statute in 2013 set a standard of review and authorized the Board to reverse or modify a trial court’s decision if the rights of a party were prejudiced because the findings of the trial judge were “not supported by evidence that is both substantial and material in light of the entire record.” Tennessee Code Annotated § 50-6-217(a)(3). That review standard was different from the standard the Supreme Court would apply to cases when appeals reached them under the new law. So, a trial court decision would be reviewed by one standard by the Board and an entirely different standard when that Board decision reached the Supreme Court. It only made sense to equalize the standard of review so that both courts would be looking through the same lens. Thus, section 50-6-217(a) (3) was repealed effective May 9, 2017.

The new standard presumes that the trial judge’s factual findings are correct unless the preponderance of the evidence is otherwise. Tennessee Code Annotated § 50-6-239(c)(7). Yet, in nine appeals since then, the appellant has cited the repealed statute as the standard of review. So, for the sake of your arguments to the Board, you might want to say, metaphorically, “Yes, I am here, and I do care,” by citing section 50-6-239(c)(7) as your standard of review.

Just a suggestion from a trial judge ̶ nothing more.



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