Judge Rules is S.C. School Funding Case

Judge Thomas W. Cooper, Jr. ruled Thursday that the state's system of funding education does not provide students in several rural school districts with the opportunity to receive a minimally adequate education because it does not sufficiently fund early childhood education. Judge Cooper also ruled that facilities in the eight rural districts are "safe and adequate" and that curriculum standards and the system of teacher certification are adequate.

If the ruling stands, the General Assembly will have to find a way to provide free preschool to at-risk students as young as three years old. However, the ruling does not require districts to fix dilapidated school buildings or raise teacher pay, as many had hoped.

From what I hear from the parties, an appeal is a certainty. A copy of Judge Cooper's Order can be found here.

The State Newspaper has this article.

The Charlotte Observer has this article.

Fourth Circuit issues opinion on effect of reservation of rights letter

In Twin City Fire Insurance Company v. Ben Arnold-Sunbelt Beverage, the Fourth Circuit considered whether, under South Carolina law, a reservation of rights letter automatically triggers a conflict of interest entitling the insured to reject counsel tendered by the insurance company and instead to choose and retain its own counsel and to have the insurance company pay for that counsel.

The panel agreed with the district court and rejected the notion that the reservation of rights letter issued in this case creates a per se conflict that must be remedied through the insured selecting counsel and having the insurance companies pay the legal fees.

State Black Caucus says judicial elections are unfair

According to an article in the Rock Hill Herald, the Legislative Black Caucus is protesting that South Carolina has seven black judges out of 112 total, even though at least 30 percent of the state's population is black. The Caucus is threatening a lawsuit over the matter.

All candidates for judgeships are screened by the 10-person Judicial Merit Selection Committee, made up of six lawmakers and four lay people appointed by lawmakers. Only three names are submitted to the legislature as a whole to run as judicial candidates. Many black leaders see having all qualified candidates on the ballot as a way to get more black candidates on the ballot.

Blacks also make up only about 5 percent of the state's lawyers. Current law school enrollment doesn't point toward any increase in the percentage of black lawyers. The University of South Carolina law school, for almost four decades the only law school in the state, has about 740 students, according to statistics released by the registrar's office. Only 47 of them are black and 27 are other races.

Balancing liberty and presidential authority

The Miami Herald has an interesting op-ed on the Fourth Circuit's recent Padilla opinion. The op-ed begins as follows:

The extraordinary rebuke issued by the U.S. Fourth Circuit Court of Appeals to the Bush administration last week in the case of "dirty bomber" Padilla may be a watershed in the debate over the presidential exercise of wartime powers. This has been a friendly venue for the administration on the issue of "enemy combatants," but it refused to endorse the twisted legal maneuvering over the Padilla detention. The implicit message is that the administration is running out of credible arguments to support an imperial view of the president's wartime powers.

S.C. Court of Appeals affirms summary judgment in legal malpractice case

In Doe v. Howe, the trial court affirmed summary judgment in a legal malpractice claim. Doe alleged he was sexually abused while attending the Porter-Gaud school in the 1970s. His attorney advised him there were problems with the statute of limitations but nonetheless arranged for a $88,000 settlement in May 2000. A few months later, in October 2000, a parent of another victim of sexual abuse at Porter-Gaud received jury verdicts against Porter-Gaud and the estates of two former officials of the school totaling $105 million dollars. After learning of the verdicts, Doe contacted his attorney the following month to inquire about the possibility of rescinding his settlement with Porter-Gaud. According to Doe, the attorney knew of no way to set aside the settlement, but nevertheless agreed to talk with his brother about the matter. Doe stated he never received an answer to his inquiry.

Doe sued the attorney for negligence and breach of fiduciary duty. The trial judge dismissed both the legal malpractice claim and the breach of fiduciary duty claim because he viewed the record as presenting no triable issue of fact regarding whether Doe would have recovered more by either trial or settlement than $88,000 if he had retained a different lawyer. The Court of Appeals agreed, but vacated the dismissal of the breach of fiduciary duty cause of action and remanded the matter to the trial judge for an order identifying the facts and accompanying legal analysis on which he relied to enable a meaningful appellate review.

S.C. Court of Appeals issues physician privileges opinion

In Levine v. Spartanburg Regional Services District, the court of appeals affirmed the trial court's order granting an injunction which required that the hospital could not terminate the privileges of anesthesiologist Levine until the merits of her case can be adjudicated.

Fourth Circuit denies government's request to transfer Padilla

The Fourth Circuit denied a Bush administration request to transfer terrorism suspect Jose Padilla, a former Chicago gang member, from military to civilian law enforcement custody. The panel also refused the administration's request to vacate a September ruling that gave President Bush wide authority to detain ''enemy combatants'' indefinitely without charges on U.S. soil. According to the panel:

Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.

Georgetown Man with HIV gets 25 years for raping girls

The Georgetown Times has this story.

South Carolina filed motion to reconsider in Catawba video poker case

Judge Joseph Strickland ruled on December 13 that the Catawba Indian Nation had the right to offer the gambling game on its reservation about 10 miles south of Charlotte despite a statewide ban since 2000. In a motion to reconsider, Attorney General Henry McMaster argued that the 1993 land claim settlement between the Catawbas and the state and federal governments was not meant to allow the tribe to offer video poker.

The Charlotte Observer has this story.

Circuit Judge Reginald Lloyd to be the next U.S. attorney for South Carolina.

President Bush has nominated Circuit Judge Reginald Lloyd to be the next U.S. attorney for South Carolina. If approved by the U.S. Senate early next year, Lloyd would be the first black U.S. attorney in the state since Reconstruction.

The Charlotte Observer has this story.

Judge Lloyd was elected by the General Assembly as an at-large Circuit Court judge two years ago. Senator Lindsey Graham recommended Judge Lloyd for the job and says Lloyd has been a conservative judge. "He crosses all kinds of party lines and political lines," Graham said. Graham averred the Senate should take up Lloyd's nomination during or right after hearings on U.S. Supreme Court nominee Samuel Alito, which are scheduled for next month.

South Carolina Senator Jim DeMint has also praised Lloyd: "I think most Democrats, Republicans and Independents will agree that he's the right guy at the right time. The South Carolina judicial system will be losing one of its most talented members, and the state and nation will be gaining one of its most talented U.S. attorneys."

Judge Lloyd graduated from the University of South Carolina Law School in 1993. He worked in the state attorney general's office from 1995 to 1998 and was director of research and chief counsel to the state House Judiciary Committee.

The South Carolina Bar has this summary of Judge Lloyd's career. (scroll down to "From the Bench").

S.C. Supreme Court issues injunction opinion

In Breedlove v. Cramer, the Supreme Court reversed the trial court's denial of a temporary injunction. The Breedloves, demented and aged, were transferring assets to the Cramers. The Guardians for the Breedloves sought a preliminary injunction freezing the Cramers' Merrill Lynch account and any other accounts, assets, and personal property purchased or acquired with the $2 million obtained from the Breedloves. The trial court held that the Breedloves were required to use attachment to preserve the disputed assets until the disposition of the case. The Supreme Court held that this was not required in a equitable action.

Court of Appeals issues statutory employee opinion

In a decision filed December 12, 2005, the South Carolina Court of Appeals affirmed a trial court's finding that a pilot who provides transport services to a hospital on a contract basis is not a statutory employee of the hospital. As a result of the appellate court's holding, the pilot, who sued a hospital employee for gross negligence arising out of personal injuries, is not barred by the exclusive remedy of the Workers' Compensation Act from pursuing his claim. The appellate court rejected the hospital's argument that the pilot was a statutory employee of the hospital on the basis that although the ability to transport patients by air helps facilitate the hospital's treatment of critically injured patients, that fact alone does not make transportation an important or essential part of the hospital's business. The appellate court noted that less than 1% of the hospital's patients require air transportation and hospital's services do not cease when air transportation is not available. The appellate court also rejected the hospital's argument that the pilot was a borrowed servant because no evidence existed that the hospital exercises control over the methods and details of each flight.

(contributed by Sandi Wilson)

S.C. Court of Appeals holds a citizen may resist excessive force to defend himself if arrested

In State v. Williams, Williams argued that the trial court erred in failing to instruct the jury that an individual being arrested is permitted to defend himself against excessive force by the arresting officer during a lawful arrest. The court of appeals agreed with Williams, holding:


After examining the holdings in other jurisdictions and our own jurisprudence, we conclude that an individual, under the appropriate circumstances, has the right to utilize the amount of resistance reasonably necessary to defend himself in the event excessive force is utilized incident to a lawful arrest. This should not be interpreted to mean anyone is entitled to resist a lawful arrest or that the arrest becomes unlawful for purposes of prosecuting the underlying offense. On the contrary, to be entitled to the requested instruction, the evidence must clearly show that the accused complied fully with all requirements placed upon citizens subject to a lawful arrest and resisted only to the extent necessary to protect himself from serious physical harm. The facts of this case warrant a jury charge to that effect.

S.C. Court of appeals issues decision on validity of arbitration agreement

In Aiken v. World Finance, World Finance argued that the circuit court erred in denying their motion to compel arbitration. According to World Finance, once the court determined that an arbitration agreement existed between the parties, the court's "decisional function" was completed and any decisions regarding the validity of the agreement and the arbitrability of Aiken's claims were to be decided by an arbitrator. The court of appeals refused to decide this issue because World Finance did not raise this precise argument in their motion to compel arbitration, the circuit court did not address this issue in its order, and World Finance did not file a motion pursuant to Rule 59 of the South Carolina Rules of Civil Procedure to challenge this omission.

The court of appeals upheld the decision to deny arbitration because no "significant relationship" existed between Aiken's tort claims and the loan agreement which was subject to arbitration.

S.C. Supreme Court adopts filed rate doctrine

In Edge v. State Farm, the state Supreme Court adopted the filed rate doctrine. The filed rate doctrine stands for the proposition that because an administrative agency is vested with the authority to determine what rate is just and reasonable, courts should not adjudicate what a reasonable rate might be in a collateral lawsuit. According to the court:

We find the policy reasons behind the filed rate doctrine persuasive. The filed rate doctrine preserves the stability, uniformity, and finality inherent in rates filed with the regulatory agency and what has been determined to be a reasonable rate by that agency. Cullum v. Seagull Mid-South, Inc., 907 S.W.2d 741, 745 (Ark. 1995). Accordingly, we hereby adopt the filed rate doctrine and, furthermore, we find it applicable in the insurance industry. Although not applicable in the present case, we also recognize there are several exceptions as set out above which may prevent its application.

Officials urge creation of South Carolina Drug Court

According to this article in The State, many officials urge creation of a statewide drug court to battle methamphetamine use in South Carolina.

Fourth Circuit issues standing opinion

In Emery v. Roanoke City School Board, the Fourth Circuit held that parents in an IDEA case had no standing to sue for the expenses incurred when a school failed to provide the child with an appropriate education because the parents incurred no out of pocket expenses.

Typically, when a school district's educational choices for a disabled child violate the IDEA, the child's parents can unilaterally place him in an appropriate educational setting and seek reimbursement from the district. In this case, the parents paid no money for the educational expenses incurred during the 1992-1993 school year because the father's medical insurance provided by his employer paid the expenses. Hence there was no standing:


Plaintiff has failed to show how awarding him this amount would be anything other than a windfall. Plaintiff was in no way shortchanged by the use of proceeds from his father's medical insurance policy to pay Cumberland's bills. Plaintiff has not, for example, shown that he failed to obtain appropriate care as a result of any diminution in his father’s lifetime insurance benefits. And his current insurance coverage is distinct from the medical insurance used to pay Cumberland. Any payment to Cumberland under his father's policy has not lessened the benefits plaintiff enjoys under his current plan.

Fourth Circuit issues effective assistance of counsel opinion

In Frazer v. South Carolina, the state appealed the district court's order granting relief on Frank Frazer's petition for a writ of habeas corpus. The court granted relief solely as to Frazer's claim that his attorney failed to consult with him regarding a direct appeal following his sentencing on state trafficking charges in 1994, and that as a result he lost his right to
appeal.

Although the South Carolina appellate courts that reviewed this claim concluded that the Sixth Amendment did not require Frazer's counsel to consult with him regarding an appeal, the Fourth Circuit affirmed the district court's conclusion that the state court interpretations of the law were unreasonable under Strickland v. Washington, 464 U.S. 668 (1984), and its progeny.

U.S. Supreme Court decides student loan case: bad news for those with delinquent loans

Lockhart v. United States, concerned the government's withholding of social security payments as an offset to amounts owed on Lockhart's student loans. Lockhart had failed to repay federally reinsured student loans that he had incurred between 1984 and 1989 under the Guaranteed Student Loan Program. These loans were eventually reassigned to the Department of Education, which certified the debt to the Department of the Treasury through the Treasury Offset Program. In 2002, the Government began withholdings portion of Lockhart's Social Security payments to offset his debt, some of which was more than 10 years delinquent. Lockhart sued in Federal District Court, alleging that under the Debt Collection Act 10-year statute of limitations, the offset was time barred.

The crux of the case was that a 1996 federal law included Social Security benefits for the first time among the benefits that the government can attach for the repayment of debts. The original Social Security Act had barred any attachment of Social Security payments. The Court held that a 1991 law eliminated the 10-year time limit for collecting student loan obligations and therefore the social security payments could be withheld.

U.S. Supreme Court likely to rule for the government in Solomon Amendment case

An article in the LA Times starts as follows:

The Supreme Court justices signaled Tuesday that they would uphold the military's right to recruit on college campuses and at law schools, despite its policy of excluding openly gay people from its ranks. The justices gave a thoroughly skeptical hearing to the position of some law faculties that they have a free-speech right to bar military recruiters, a claim that was upheld by a lower court.

SCOTUS Blog has this account of the argument.

The briefs of the parties can be found here.

Chief Justice Toal on the judicial system

The State newspaper has this article on the Chief Justice's speech yesterday.

New seat belt law gives S.C. cops more authority

According to this report from the AP:

Law enforcement officials around South Carolina are preparing for the new statewide seat belt law that goes into effect Friday.

The new law is a primary one, which means law enforcement officers may pull a vehicle over if they suspect anyone inside is not wearing a seat belt. Under South Carolina's current law, which is secondary, officers may issue a ticket for a driver or occupant not wearing a seat belt only if they have stopped the vehicle for another violation.

But the new law also prohibits officers from setting up checkpoints specifically to check seat belt or from writing tickets for seat belt infractions at other public safety checkpoints.

In the criminal law context this means that police have yet another "valid reason" to pull over a vehicle if they have a hunch some other criminal activity is afoot.

Court of Appeals reverses summary judgment in attorney malpractice case

In Smith v. Hastie, the court of appeals reverses a grant of summary judgment for the attorney in a malpractice action. The case concerned the attorney setting up a partnership for husband and wife, and the results of the partnership on the equitable distribution. The wife alleged that at no time during the meetings did the attorney advise her about the potential loss of her right to claim the assets in the partnership or the income from these assets in the event of a divorce. In fact, she specifically asked the attorney on two occasions how she would be affected in case of a divorce and the attorney told her both times she would be just fine.

Based on these facts and a supporting affidavit from an expert, the court held that the trial court erred in granting the attorney summary judgment on the negligence claim.

Fourth Circuit issues Title VII opinion on exhaustion of administrative remedies

In CHACKO v. PATUXENT INSTITUTION, the Fourth Circuit considered whether the plaintiff exhausted his administrative remedies, and thus properly brought suit in federal district court, under Title VII of the Civil Rights Act of 1964. Prior to bringing suit, a plaintiff must file an administrative charge with the Equal Employment Opportunity Commission (EEOC). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit."

According to the Court, the plaintiff failed to exhaust his administrative remedies because his administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit. According to the court, plaintiff's "centerpiece" at trial was that coworkers continually made derogatory national-origin remarks to him over the course of his twenty-year career, and that supervisors did not discipline these coworkers, laughed at their comments, and may have joined them. The administrative charges, however, alleged specific episodes of harassment. None of them mentioned coworker harassment or national-origin epithets.

Because these claims were not raised in the EEOC charge, plaintiff failed to exhaust administrative remedies.

U.S. Supreme Court hears first abortion case in 5 years

According to Law.com:


During oral arguments in Ayotte v. Planned Parenthood of Northern New England, several justices criticized the law because it fails to spell out an exception that would allow doctors to perform abortions quickly in medical emergencies without having to contact parents or a judge.

Abortion rights supporters emerged from the Court cautiously optimistic about the outcome. "The chances that the New Hampshire law will come out of this intact seem very small," said Steve Shapiro, legal director of the American Civil Liberties Union, which represented challengers to the New Hampshire law.

S.C. Court of Appeals issues opinion on "substantial rights" for appellate purposes

In Brunson v. American Koyo Bearings, the Employer in a workers' compensation case sought review of a single Commissioner's decision by the full Commission. In its application for review and supporting memorandum, Employer did not challenge the compensability of one injury, but did challenge others. In a short order, t he Commission vacated the single commissioner's order and remanded for a de novo hearing.

The employee filed an appeal because he believed that the de novo hearing before the single commissioner would include all issues, including those not challenged in Employer's appeal to the Commission. The court of appeals ruled that a substantial right entitling employee to an immediate appeal was not involved because the de novo hearing would be limited "to those matters included in Employer's appeal to the Commission." Hence, the compensability of the unchallenged injury was not up for rehearing. Had it been, the court indicated that a substantial right would have been effected.

Unintended consequences of mini bottle repeal

As most of you know, last year South Carolina repealed its constitutional provision requiring use of mini bottles in bars. (Kinda scary that such a provision would be a part of fundamental law, but they don't call us backward for nothing......). As the state's bars begin the switch to free pour, it appears there are many more issues than just buying the big bottles. Many establishments are facing costs of remodeling, retraining, refiguring costs.

For instance, many bars will have to retrain their bartenders, folks who never have used a jigger. There never was a need to when all recipes required that bartenders open minibottles and dump them into glasses. Until now, liquor has been the most closely regulated substance in this state: one bottle, one drink. It was practically impossible for bartenders to vary the strength of a drink, or give their buddies a stiff one. And don't expect those prices to go down, even if the amount of booze in your drink goes down. (Hmmmm.... maybe the old constitutional provision wasn't so backward).

The Post and Courier has this article on the switch to free pour.

Fourth Circuit issues Clean Water Act opinion

In Ohio Valley Environmental v. Bulen, the Fourth Circuit using Chevron deference held that the Army Corps of Engineers complied with the Clean Water Act when it promulgated NWP 21. NWP 21 is a general permit for the discharge of dredged or fill material into the waters of the United States that allows projects to proceed only after receiving individualized authorization from the Corps. According to the court:

We conclude that the Corps complied with section 404(e) when it issued NWP 21. The Corps identified a category of activities, it determined that those activities would have a minimal environmental impact both separately and cumulatively, and it provided notice and opportunity for public hearing before issuing the permit. The Corps' issuance of NWP 21 thus fell within its authority under section 404(e).

S.C. Court of Appeals issues reverses trial court's dismissal of claim in probate court

In the case of In re Burch, defendant moved the circuit court to dismiss Gordon's action against the estate of George Burch for failure to present his claim within the proper time and on the proper form. Defendant argued that because Gordon did not file South Carolina Probate Court Form 371 before the claim period expired,Gordon did not properly present his claim against the estate, and his claim was barred. The court ruled as follows:

Form 371 may be necessary when the claimant intends to submit a claim to the personal representative but does not intend to commence an action against the personal representative--for example, when the claimant expects the personal representative to allow the claim. Form 371 may also be necessary when the claimant intends to commence a proceeding against the personal representative in a court other than probate court. In that case, Form 371 would put the probate court on notice of the proceeding, which would insure that the estate is not distributed before the claim is handled. In this case, however, the complaint accomplishes precisely what Form 371 is intended to accomplish. Therefore, the trial court erred when it held the requirements of section 62-3-804(2) can be satisfied only by filing Form 371 with the probate court.

Biden threatens an Alito Filibuster

The AP has this story on a possible filibuster.

Pundits speculate Alito will be a "federalist" justice

The Washington Post has this op-ed.

Home Gold CEO indicted

According to this article, the grand jury levied 10 charges against the former head of HomeGold Financial Inc., claiming his lies about his lavish lifestyle and the company's health contributed to the biggest financial collapse in state history.

Fourth Circuit issues qualified immunity opinion

In Wilson v. Flynn, the Fourth Circuit affirmed the district court's grant summary in favor of two police officers based on qualified immunity. At base, Officers Flynn and Butler arrived at the Wilson house and confronted a volatile domestic disturbance. Wilson was drunk, assaulted his wife, had a gun in the house, and actively resisted arrest. These factors supported the conclusion that the injuries Wilson suffered in the melee did not constitute a deprivation of a constitutional right. (As a result of the incident, the left side of Wilson's face was badly bruised and swollen, and he suffered a nasal fracture.)

The officers' use of force, according to the panel, was not objectively unreasonable under these circumstances.

Fourth Circuit issues ADA opinion

In Taylor v. Fed Ex, the Fourth Circuit affirmed the district court's grant of summary judgment in an ADA case. The panel agreed that Fed Ex did not violate the ADA when it failed to accommodate Taylor's his back impairment and terminated his employment. The panel agreed that Taylor was not disabled under the ADA.

The key to the court's opinion was that a vocational consultant estimated that Taylor's work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor's dictionary of occupational titles. Accordingly, his back impairment did not substantially limits his ability to work and therefore constitutes a disability under the ADA.

Wither USC Law?

Professor Bill Quirk has an excellent op-ed up on the problems at USC Law. According to Quirk, the quality of students is dropping and the good South Carolina students are going out-of-state where the tuition is cheaper and the law schools have higher rankings. Quirk's suggestions: Cut tuition and lower class size.

This is a good op-ed. South Carolina lawyers should take a look.

S.C. Supreme Court holds that there is no statute of limitations in a paternity action

In Smith v. Doe, the supreme court held that there is no statute of limitations applicable to actions seeking to establish paternity. According to the Court: "The statutory authority read in conjunction with this Court's common law makes it clear that the legislature did not intend to impose a statute of limitations on paternity actions because the Legislature did not specifically include one in the statutory scheme."

Issues surrounding Governor's Medicaid proposal go to federal court

There is a direct challenge of Governor Sanford's plan to move the state's 1 million Medicaid recipients from state-administered, fee-for-service health care to managed health care, administered by private insurance companies. The arguments are as follows:

The plaintiffs--rural health clinics and a nonprofit group--say changes to Medicaid must be cleared by the General Assembly under the state Administrative Procedures Act, with adequate public notice and opportunity for input.

Sanford's attorneys say the Department of Health and Human Services is the "single state agency" that can set Medicaid policy and the Legislature has no jurisdiction in that process.

An article on the suit can be found here.

Radwill Murder Trial to Begin

The defendant has been in jail ten years awaiting trial. This is possibly the longest anyone in the nation has waited in jail for a trial to begin. The State newspaper has this story on the trial and murder.

Posting will be light this weekend

I'm attending the Federalist Society Convention in D.C. I'll be back in the office on Monday.

Maurice Bessinger loses SCUTPA case

In Bessinger v. Bi-Lo, the court of appeals affirmed that Bessinger could not proceed with a claim under the SCUTPA for the removal of his barbecue sauce from retail stores. The SCUTPA declares unlawful "unfair . . . acts or practices in the conduct of any trade or commerce." "An act is 'unfair' when it is offensive to public policy or when it is immoral, unethical, or oppressive." Bessinger alleged that retail grocers discontinued selling his products and removed the remaining items in stock from their shelves because Bessinger flew the Confederate battle Flag in front of his restaurants. The court of appeals held that the trial court properly dismissed Bessinger's claim. According to the court:

We agree with the trial court that the allegations in the complaint do not suggest Defendants committed acts that would be unfair under the SCUTPA. Assuming without deciding that Defendants terminated their business relationships with Plaintiffs solely because of Bessinger's statements, there is no First Amendment violation. Moreover, as free market participants, the defendant grocery store chains and their respective managers have the right to choose with whom they conduct their business. Although Plaintiffs are correct that this right "is not an absolute, unfettered privilege," recent case law indicates that in South Carolina the enactment of the SCUTPA has not affected this right. Moreover, we agree with Judge Anderson's statement that, despite Plaintiffs' assertion that their products were never unprofitable, the business decision to discontinue the sale of these items is best left to "the one who bears the risk of the decision." It follows, then, that the courts should not mandate that a private enterprise maintain an association that it believes is not conducive to any facet of its business, including its marketing, public image, and organizational structure.

Certified question answered on what is an occurrence

In Owners Insurance Co. v. Salmonsen, the Supreme Court was presented with the following certified question: To determine the number of occurrences for purposes of a commercial general liability insurance policy’s liability limit, will South Carolina adopt the majority or minority rule? The majority rule in interpreting the meaning of "occurrence" in a liability policy is the so-called "cause test" which focuses on the cause of the damage rather than the number of claimants or injuries. The minority view, on the other hand, focuses on the effect of the insured's action and considers each event or each injury a separate occurrence.

The Court declined to adopt either view and held that in this case involving a sale of defective synthetic stucco, "because the distributor has taken no distinct action giving rise to liability for each sale, we conclude under this policy definition that placing a defective product into the stream of commerce is one occurrence. "

Error Preservation and Rule 59(e)

Last week I spoke at the South Carolina Defense Trial Lawyers' conference on Rule 59(e). As we all know, Rule 59(e) presents great dangers to lawyers in seeking to preserve error in South Carolina. Here is a short summary on how to avoid Rule 59(e) pitfalls:

1. Raise all issues you want preserved in the initial post trial motion. If the judge rules on all issues, do not file a Rule 59(e) motion.

2. If the judge does not rule on all issues raised in the initial motion, you must file a Rule 59(e) motion. But only list the issues not originally ruled on.

3. If the trial judge raises a new issue when ruling on the first post-trial motion, you must file a Rule 59(e) motion to address the alteration of the original judgment.

4. When filing a successive motion, ask the judge to rule on it as quickly as possible because of tolling concerns.

Is Lindsey Graham prohibited from serving as a military judge?

According to USA Today:

The case before the U.S. Court of Appeals for the Armed Forces here involves Sen. Lindsey Graham, R-S.C., an Air Force Reserve colonel appointed two years ago to the lower Air Force Court of Criminal Appeals.

Lawyers for Airman 1st Class Charles Lane are seeking to throw out Lane's cocaine conviction on the grounds that Graham, one of three appellate judges who reviewed his case, is "constitutionally and ethically disqualified" to serve.

In court papers, Lane's lawyers argue that "Senator/Judge Graham cannot be an impartial and disinterested judge" because he is "politically accountable to his constituents for anything he does." Graham declined to comment on the case's merits. "We'll live with whatever the court says," he said.

Attorney General Henry McMaster challenges ACLU

In response to the ACLU's promise to bring suit against upstate governmental councils who pray in the name of Jesus, the Attorney General has announced that the state of South Carolina will defend the councils' position in court. According to McMaster: "The point is the ACLU's intent is to find fault with any prayer and that is contrary to the South Carolina and US Constitutions." We'll see how this legal battle shakes out.

Statutory Construction in South Carolina

For those of you having a case where an issue of statutory construction are key, please read Eagle Container v. County of Newberry which was decided yesterday by the Court of Appeals. This case has a good discussion of the principles of statutory construction and will likely become "the case" cited to when these issues arise.

State Supreme Court to hear arguments on whether Friends of the Hunley are subject to FOIA

WIStv.com has this report. Here is a snippet:

Friends of the Hunley previously has said it does not have to comply with the state's Freedom of Information Act. Hunley Foundation lawyers argue the Supreme Court shouldn't hear the Freedom of Information Act issue because the group eventually gave retired Greenville businessman Edward Sloan the documents he first requested in 2001.

Alito gets the nod as the next Supreme Court Justice

ABC has this report on the President's choice.

Here is a brief bio on Judge Samuel A. Alito.

The AP is running this story on Alito's background.

SCOTUS Blog has this bio and listing of his most important opinions.

As you will see from the above, many of the news stories focus on his dissenting opinion in Planned Parenthood v. Casey. Here is a link from Confirm Them to this dissenting opinion. Scroll down through the comments to get there.

Fourth Circuit Letter Bombs

This was not much reported, but a letter bomb was discovered at the Fourth Circuit courthouse in Richmond earlier this week. A source told me that initial indications were that the bomb would have exploded had it not been discovered by the Marshals Service. Later in the week, during an en banc hearing, Chief Judge Wilkins announced that the courthouse had been sealed because of another letter bomb which appeared to contain anthrax. It was later discovered that the "anthrax" was body powder.

My source also indicated that the "anthrax letter" originated from a federal prison.

A news story on the first bomb can be found here.

Internet gambling case in Greenville Courts

According to this report:

A Greenville judge has refused Game Systems Inc.'s request for an injunction that would keep police from seizing computers used to play Internet games.

Authorities see the online games as an attempt to get around the state's video gambling ban.

Game Systems asked Circuit Judge Edward Miller to intercede after an undercover State Law Enforcement Division agent bought a $40 phone card at the Internet Cafe in Simpsonville. With that card, he was allowed to choose from among 15 games played on 20 Internet Cafe computers.

The state says the business was set up only for Internet video gambling.

Jim Griffin, a lawyer for Fort Worth, Texas-based Game Systems, said the games are being played in eight S.C. counties and in eight states and they are no different than other cash prize promotions, such as McDonald's Monopoly game or Piggly Wiggly's lotto.

The state Supreme Court upheld promotions such as McDonald's Monopoly game because the primary purpose is to sell a legal product, state lawyers said.

Reforming the S.C. Family Court System

The Greenville News has a good piece up on the problems of the state Family Court system. The Senate subcommittee studying reform is apparently considering sending cases of abuse and neglect, Department of Social Services cases and child-support collection actions to hearing officers instead of Family Court judges.

Miers withdraws

CNN has this report.

A copy of her letter of withdrawal can be found here.

S.C. Supreme Court issues products liability opinion dealing with successor liability

In Simmons v. Mark Lift Industries, the state Supreme Court answered certified questions dealing with successor liability. Among other things, the Court held that a successor or purchasing company ordinarily is not liable for the debts of a predecessor or selling company unless (1) there was an agreement to assume such debts, (2) the circumstances surrounding the transaction warrants a finding of a consolidation or merger of the two corporations, (3) the successor company was a mere continuation of the predecessor, or (4) the transaction was entered into fraudulently for the purpose of wrongfully defeating creditors' claims.

The Court also held that a plaintiff may maintain a product liability claim under a successor liability theory against a defendant when there are one or more other viable product liability defendants. The status and availability of other potential defendants is irrelevant in determining the issue of a successor corporation's liability in a product liability action.

Phil Lacy named Interim Dean of USC Law

According to WIS News:

The University of South Carolina has named professor Phil Lacy to be interim dean of the Law School.

Lacy succeeds Burnele V. Powell, who stepped down in September to return to teaching. Powell came to South Carolina as the school's first black dean in 2003.

A search committee has been formed to conduct a nationwide search for a new dean.
The last search lasted two years before the school finally settled on Powell.

Lacy is 57 years old and is a Duke University and Virginia law School graduate. He has taught law at USC since 1975.

S.C. Court of Appeals holds that remand from circuit court to workers' compensation commission is immediately appealable

In Brown v. Greenwood Mills, the court of appeals considered whether a circuit court order remanding a case back to the Workers' Compensation Commission to apportion the lung disease injury between the claimant's smoking habit and cotton dust from the mill. The court of appeals held this to be a final order and subject to appeal. According to the panel:

The court's order mandates apportionment. This ruling is a decision on the merits because it decides with finality whether Greenwood is required to reduce its compensation under sections 42-11-90 and -100. Although the judge left the percentage of apportionment to the commission on remand, the panel would have no choice but to allocate some part of Brown's disability to the non-compensable cause. Accordingly, the circuit court's order constitutes a final decision on the issue of apportionment and is appealable

Conservation Easements in South Carolina

According to this article, grants of conservation easements are on the rise in South Carolina:

Conservation easements are voluntary, permanent deed restrictions that a landowner donates to a nonprofit group or government agency. In exchange, the owner can claim a federal income tax deduction.

In South Carolina, more than 200,000 acres have been preserved through conservation easements, including wetlands in the Lowcountry where ospreys, woodpeckers, alligators and other wildlife live, according to the South Carolina Coastal Conservation League.

S.C. Supreme Court interprets Crawford v. Washington

In State v. Washington, Washington appealed from his conviction for murder. Washington argued, inter alia, that a "narrative" statement given to police by a witness was inadmissible. In so arguing, he relied on the landmark case of Crawford v. Washington, 541 U.S. 36 (2004). The state Supreme Court declined to apply Crawford and explained the case as follows:

In Crawford, the prosecution introduced tape-recorded statements made to police by Crawford's wife, Sylvia. Id. at 38-40. Resorting to the application of the marital privilege, which generally bars a spouse from testifying without the other spouse's consent, Sylvia did not testify at trial, and was therefore considered an unavailable witness. Id. at 40. On appeal, the court concluded that when the declarant is unavailable, hearsay statements that are testimonial in nature can be admitted into evidence only when the declarant has previously been subjected to cross-examination. Id. at 68. The court's analysis was rooted in a defendant's Sixth Amendment right to confrontation. In the instant case, had Cropper been unavailable as a witness at trial, Crawford would be controlling and the admission of her statement likely error. However, because Cropper was available and did in fact testify at trial, a confrontation clause analysis under Crawford is not required.

Crawford has been much cited by criminal defense lawyers to keep out of evidence certain out-of-court statements. This opinion provides needed clarification on the Crawford issue.

S.C. Supreme Court issues UCC Opinion

In Hitachi v. Platinum Technologies, the Supreme Court held that a Buyer of goods could not pursue a breach of contract action against the seller when Buyer failed to comply with Article 2's requirements. In this case, the Buyer accepted the goods because the Buyer had failed to reject them within a reasonable time after their delivery as required by article 2 of the Uniform Commercial Code and the Buyer failed to give notice of breach to the Seller within a reasonable time after taking delivery as required by article 2.

Three candidates seek Judge Westbrook's seat

According to this story in the State newspaper, the candidates are:


1. 11th Circuit Family Court Judge Kellum Allen
2. Knox McMahon, a former prosecutor with Lexington and Richland counties now in private practice in Columbia
3. Lisa Lee Smith, a Lexington lawyer

Allen, 54, of West Columbia has been a family court judge since 1998. He attended the University of South Carolina, earning a bachelor's degree in 1973 and a law degree in 1976.
He served two years as an assistant public defender in Greenville County before joining the West Columbia law firm of Kirkland, Wilson, Moore, Allen & Taylor, where he practiced primarily civil and family law for 20 years. He also has been an associate municipal judge in West Columbia.

McMahon, 57, of Lexington spent 10 years as an officer with the USC police, Columbia police and Lexington County Sheriff's departments before becoming a prosecutor.

He earned bachelor's and law degrees from USC in 1975 and 1978, respectively.
McMahon worked for 11th Circuit Solicitor Donnie Myers from 1983 through 1994 and was Myers' first deputy solicitor. He was one of the most experienced death-penalty prosecutors in the state, handling about 25 capital murder cases.

In 1995, McMahon joined the office of newly elected 5th Circuit Solicitor Barney Giese as senior assistant solicitor. In 1999, he made an unsuccessful bid for an at-large circuit court seat.

McMahon left Giese's office in 2002 and joined the Columbia practice of Jim Anders, a former Richland County solicitor. After Anders' death last year, the firm became known as Whetstone Myers Perkins & Young.

Smith, 36, of Lexington was a law clerk for 11th Circuit Court Judge William Keesley for 1 and 1/2 years before joining the Lexington firm of Nicholson Davis Frawley Anderson & Ayer eight years ago.

Smith said last week that her time with Keesley, whom she described as a great mentor, was a big factor in her decision to make her first try for a judgeship. If elected, Smith would become the 11th Circuit's first female circuit judge, Shuler said.

The South Carolina Supreme Court Speaks Out on Non-Compete Agreements

In response to a certified question, the Court in Stonhard, Inc. v. Carolina Flooring Specialists, Inc., held that a non-compete agreement that contains another state's choice-of-law provision cannot be reformed (or "blue penciled") to include a geographic limitation that is enforceable in South Carolina. To be enforceable in South Carolina, a non-compete agreement must be reasonably limited as to time and territory. In Stonhard the non-compete agreement at issue did not contain a geographical limitation of any kind, but a choice of law provision said that New Jersey law applied. Because New Jersey allows blue penciling, the plaintiff argued that the Court should reform the agreement by adding an enforceable geographic limitation. The Court declined to do so on the basis that although New Jersey's blue penciling law allows a court to rewrite unreasonable provisions, it does not allow a provision to be written into a covenant when such a provision never previously existed. The Court added that even if another state's law did allow a non-existent provision to be added to a contract, the application of such a law would violate the public policy of South Carolina.

(Contributed by Sandi R. Wilson)

Fourth Circuit's Chief Judge William Wilkins on the Role of the Courts

This week, Chief Judge William Wilkins authored an op-ed on the role of the courts. Here is a taste:

Judges must never forget that the judicial branch was not created to run society. The Constitution assigned this task to the executive and legislative branches of government elected by the people. The judicial branch, on the other hand, was created as a safeguard, a check, a fail-safe, to prevent society from running wild.

. . . .

Think of a carpenter who is handed a set of architectural drawings to be used in constructing a building. As the building is being erected, the carpenter must interpret the drawings. And, of course, how the carpenter interprets the drawings will certainly affect the quality of the construction. But, if the design calls for a two-story building, the carpenter may not make it three stories even if three would be much better. A carpenter is not free to work his will in fashioning the building to his own personal liking and design.

The same is true of judges -- we did not write the laws or the rules or regulations set forth by the other two branches of government and we should not attempt to rewrite them, for we must be obedient to their design. And, we did not write the Constitution that governs and protects us all, and we must be careful that our decisions follow the constitutional design, rather than attempting to rewrite it.

Senator Lindsey Graham Speaks on Harriet Miers and Judicial Issues

Senator Lindsey Graham spoke today at the Greenville County Federalist Society luncheon meeting. His speech covered judicial nominations, Harriet Miers, and courts in the war on terror.

The Senator began by observing that good men and women will avoid public service in the judiciary if the current climate persists. He observed that Justice Scalia could not be confirmed today because of the bitter partisanship in the Senate. Using this as a lead in, Senator Graham defended the compromise on the filibuster issue. He described the compromise as merely an effort to promote civility and permit all sides to step back from a course that would damage the ability of the Senate to function.

On Harriet Miers, the Senator accused groups on the Right of being more unfair on this nomination than groups on the Left had been to John Roberts. Graham spoke at length on Miers' qualifications, touting her rise in the Texas Bar and leadership in her 400-person firm as evidence of ability and skill at building coalitions. He defended the President's choice of a woman as promoting diversity. He averred that if another seat opens up, President Bush should appoint a Hispanic Justice to reflect this group's growing importance in America.

Senator Graham said he had spoken with the President at length on the Miers nomination. He averred that the President took two lessons from Bush I's administration: (1) read my lips, and (2) David Souter. Senator Graham said it was important to the President to avoid the mistake of David Souter; therefore, the President picked a nominee who he knew well and who the President believes will not tarnish his legacy. Senator Graham emphasized that the President's legacy was important to him and that this was nomination to secure that legacy. He ended his discussion of the Miers nomination by urging groups on the Right to give Miers an opportunity to be heard. He also promised that although he supported Miers, he would ask her tough questions dealing with the war on terror.

Turning to the war on terror, Senator Graham admitted that Congress had abdicated its constitutional role by failing to suspend habeas corpus with regard to enemy combatants. He indicated his agreement with Justice Scalia's dissenting opinion in Hamdi on this point. The Senator promised to introduce legislation to aid the courts as they grapple with enemy combatants--individuals he described as residing in a no man's land between the criminal justice system and POW status.

Senator Graham also promised to introduce legislation to ensure that enemy combatants are properly interrogated, but not tortured. He said how we treat enemy combatants and suspected terrorists is a reflection of who we are as a people. Senator Graham expressed some concern over the current lack of guidance on these issues.

Dirty Dancing and the Fourth Circuit

On Friday, the Fourth Circuit decided Willis v. Town Of Marshall.

It seems that the Town of Marshall, North Carolina, hosts regular Friday-night concerts and community gatherings at the Marshall Depot, the Town's community center. Rebecca Willis enjoyed attending the Friday-night gatherings and dancing to the music provided by the local bands. Willis thought she was really grooving, but her "unorthodox dancing style" led to a ban from attending these events. According to the JA, Willis danced in a sexually provocative manner--gyrating and simulating sexual intercourse with her partner while hunched on the floor. She also wore very short skirts and would frequently bend over while dancing, exposing her underwear, her buttocks, and her "privates."

Willis ultimately filed a section 1983 suit in federal district court. The district court denied Willis's motion for a preliminary injunction and later granted summary judgment in favor of the Town. The Fourth Circuit affirmed in part and vacated in part.

Regarding Willis' First Amendment claim, the court held:

Because recreational dancing of the type at issue in this case is not expressive conduct protected by the First Amendment, the factual dispute about the nature of Willis's dancing is not material to her First Amendment claim. Thus, with regard to the Town's policy on lewd dancing, there simply is no First Amendment issue.

As for the equal protection claim, the court held that a ban on lewd or suggestive dancing is rationally related to the Town's interest in promoting a family environment at the events. However, the court vacated the grant of summary judgment on her "class of one" claim (i.e., Willis being the only person banned). Although the Town asserted that it received no complaints about any other Depot dancer, the Court held that there was no evidence in the record demonstrating the absence of complaints:

Whether complaints were or were not received is a matter wholly within the knowledge of the Town. Because the district court granted summary judgment before allowing any discovery, Willis had no opportunity to demonstrate that others situated similarly in this regard were not treated similarly.

The court also vacated the denial of a preliminary injunction because the lower court's order did not explicitly address Willis's Equal Protection claim. Hence, Willis can continue her fight to come back to the ever popular Depot in Marshall, N.C.

This is a fun case and worth a read if you have time.

Attorney General Henry McMaster calls domestic violence the #1 crime problem

With October designated as Domestic Violence Awareness Month, the Violence Policy Center in Washington has just released its latest report, "When Men Murder Women: An Analysis of 2003 Homicide Data." The annual report details national and state-by-state information on female homicides involving one female murder victim and one male offender.

Alaska ranks first in the nation in the rate of women killed by men. Ranked behind Alaska are: Nevada, Louisiana, New Mexico, Tennessee, South Carolina, Arizona, Georgia, Mississippi and Texas. Nationally, the rate in 2003 was 1.31 per 100,000. In South Carolina, the rate was nearly a person higher at 2.21.

To combat this problem, the AG's office has launched a program whereby lawyers can volunteer as pro bono prosecutors for criminal domestic violence actions. There simply aren't enough government prosecutors available to handle the case load. I have recently signed on to assist in this effort, and urge other members of the SC bar to do the same. It is for a great cause.

Miers' role in Jones v. Bush

Today, the WSJ has an article up on Miers participation in Jones v. Bush, which was suit filed to prevent Texas electors from voting Bush-Cheney. The 12th Amendment, of course provides that a state's delegation can't vote for presidential and vice presidential candidates who are both from electors' home state. The is was whether Cheney was a citizen of Texas or Wyoming. According to the article, Miers argued for a liberal interpretation of the so-called habitation clause.

It is an interesting article, but we can't draw too much out of it. Miers was acting as an advocate and was making the best arguments she could on her client's behalf.

(Hat tip to How Appealing)

Pros and Cons of Harriet Miers

Professor Bainbridge argues that Miss Harriet is really Crash Davis and not ready for the show.

Hugh Hewitt counters that Dubya has appointed excellent judges and this is no exception.

Both writers make excellent points, take a look.

My Thoughts on the Miers Nomination

Most Americans recognize the Supreme Court as final arbiter of our rights and the Constitution. Even if the President, a unanimous Congress, and the people of all fifty states agree on a particular piece of legislation, a coalition of five unelected, unaccountable justices could strike the law as unconstitutional. Hence, a High Court appointment is perhaps the most important decision that a president can make.

In exercising this important power, President Bush has nominated Harriet Miers to replace the retiring Justice Sandra Day O'Conner. Outside of the Texas bar and the White House, few have heard of Miers. A graduate of Southern Methodist University, Miers has practiced law in Dallas for most of her career. Having never served on the bench or in academia, Miers has even less of a paper trail than the recently confirmed Chief Justice John Roberts.

In recent days Miers has been excoriated in the media. Unfortunately, much of the criticism of Miers has been for the wrong reasons. For example, the Ivy-educated have turned up their collective nose at Miers' SMU Law degree. The presumption seems to be that law schools other than Harvard and Yale cannot produce quality lawyers or judges. This, of course, is rubbish. One need only look at the Fourth Circuit Court of Appeal's Judge Karen Williams. Bereft of Ivy and with a law degree from the University of South Carolina, Judge Williams is widely regarded as a shining star in the federal judicial constellation.

Pundits have also been critical of Miers' lack of judicial experience. Only appellate court judges, they imply, are worthy of a Supreme Court nomination. This myopic view ignores that private practice is often more challenging than the cloistered existence of appellate court judges. Trial lawyers must juggle myriad cases, think on their feet, and don't have the luxury of retreating to chambers when a difficult issue presents itself. Her vast trial experience coupled with her position as managing partner for a 400-lawyer firm gives Miers a perspective that most judges lack. She would bring a true diversity of experience to the Supreme Court.

These pluses aside, there are major issues with the Miers nomination--specifically, her lack writing or speaking on the major legal issues of our time. Other than a couple of short articles in the Texas Lawyer magazine and a speech at the Pepperdine University, there is no record of her views or opinions. She has written no books, law review articles, books reviews, or editorial columns. One wonders whether she has even written a postcard. With no hard evidence of the nominee's judicial philosophy or intellect, the Administration simply asks the people to trust its judgment on the Miers nomination.

Miers' lack of a written record can only be attributed to some combination of the following: (1) she lacks the intellectual heft to participate in debate over constitutional issues, (2) she does not care, or (3) she has carefully avoided stepping into the fray in order to advance her career. Any one of the reasons is sufficient to disqualify her from consideration.

Under the Constitution, the Senate must give its advice and consent before approving a nomination to the Supreme Court. Other than impeachment, "advice and consent" is the only constitutional check the people's representatives have on judicial appointments. With Miers' failure to apply pen to paper and the nominees' usual refusal to provide meaningful answers during confirmation hearings, the senators will have little on which to base an affirmative vote for Miers.

It is incumbent on the President to nominate individuals who can be evaluated. Stealth candidates such as Miers are but improper attempts to evade the Constitution's advice and consent requirement. Unless Miers quickly provides some hard evidence of her legal philosophy and opinions, the Senate will be compelled to exercise its constitutional check and reject the Miers nomination. There is simply too much at stake to place blind faith in the President's choice.

S.C. Supreme Court says no jury trial in civil forfeiture proceeding

In Mims Amusement v. SLED, the Supreme Court considered whether a party has a right to a jury trial, under the state constitution, in a civil forfeiture proceeding involving an allegedly illegal video gaming machine. The Court answered in the negative.

Distinguishing between contraband per se and derivative contraband, the Court framed the crucial question as follows:

The controlling question we must answer, then, is whether a video gaming machine--at the moment of seizure--is an item of contraband per se or derivative contraband. Is the unexamined machine more like a roulette wheel or an automobile? If it is the former, a claimant has no right to a jury trial; if it is the latter, a claimant has a right to a jury trial.

Because it deemed the machine contraband per se, there was no right to a jury trial.

Bush Chooses Miers for Supreme Court

Another stealth candidate. ABC News has this story.

Update: Tom Goldstein over at SCOTUS Blog, predicts that Miers will not be confirmed. Also, see this post at the Volokh Conspiracy comparing Miers to Justices White and Powell.

S.C. Supreme Court holds that faulty workmanship is not an accident

The South Carolina Supreme Court issued its decision in the case of L-J, Inc. v. Bituminous Fire and Marine Insurance Co., holding that faulty workmanship is not considered an accidental event or "occurrence" under a commercial general liability policy. According to the Court:

[W]e hold that the damage in the present case did not constitute an "occurrence." If we were to hold otherwise, the CGL policy would be more like a performance bond, which guarantees the work, rather than like an insurance policy, which is intended to insure against accidents.

S.C. Court of Appeals issues important med mal opinion

In Wogan v. Kunze, the court of appeals held there is no private right of action against a physician for failing to properly file a Medicare claim pursuant to 42 U.S.C.A. section 1395w-4(g)(4).

The court also affirmed that under the SCUTPA, a claim may not be brought in a representative capacity.

South Carolina ordered to pay Planned Parenthood legal fees

South Carolina must pay the legal bills Planned Parenthood incurred when it challenged the state over the issuance of Choose Life license plates. The organization eventually won its suit in a federal appeals court claiming the plates were discriminatory.

See the news story here.

Senator Lindsay Graham endorses Williams for SCOTUS slot

According to this piece in the Times Democrat, Senator Graham is supporting a possible Karen Williams nomination.

The pick could come as early as today.

U.S. Supreme Court grants cert in S.C. death penalty case

The State newspaper has this account. Bobby Lee Holmes, 33, was convicted in the 1989 New Year's Eve rape and murder of 86-year-old Mary Stewart of York. He is challenging a state court ruling that he can't present evidence to a jury implicating another York man, Jimmy McCaw White, 37.

Judge William Wilkins to speak at Bob Jones University

Judge William Wilkins of Greenville, who is chief judge of the 4th U.S. Circuit Court of Appeals, will appear Thursday at Bob Jones University. The 7 p.m. event in Founder's Memorial Amphitiorium is free and open to the public.

His remarks will deal with "the role of judges and lawyers in a democratic society."

It's no secret: Karen Williams could be our next Supreme Court Justice

The Fourth Circuit's Judge Karen Williams was mentioned in the last round of Supreme Court speculation. This time, it appears to be more than a mention. News reports indicate that Dubya is giving her serious consideration. Here is a good profile and op-ed on Judge Williams from the Times and Democrat.

S.C. Ct. App. holds that judicial economy is not a valid reason to deny arbitration

In Wellman v. Square D, the court of appeals concluded that a trial court may not refuse to enforce an otherwise valid arbitration provision on the basis of judicial economy. Yet another sign that South Carolina is becoming very pro-arbitration.

Chief Justice Toal tells Senate that number of Family Court judges needs to double

According to WLTX:

South Carolina Chief Justice Jean Toal says the state's family court system is overloaded.

Toal has told a Senate subcommittee that the number of judges would have to double to "reasonably process" Family Court cases that include divorces and child support issues.

S.C. Court of Appeals issues Wage Payment and Employment Law Decision

A promise is not necessarily a contract---even in the employment context, if it is subject to exception and is not in writing. In Davis v. Greenwood School District 50, a decision issued by the South Carolina Supreme Court on September 19, the Court affirmed summary judgment in favor of the District on the plaintiff's causes of action for breach of contract, promissory estoppel, breach of fiduciary duty, and the South Carolina Payment of Wages Act. The plaintiffs' claims arose out of a superintendent's promise to give teachers who completed national board certification a 10% pay increase, subject to approval by the School Board. Due to a budget shortfall, the School Board did not approve the increase. The Court determined that the plaintiffs, teachers who had obtained national board certification following the superintendent's announcement, were not entitled to any relief since the promise had been issued with a clear caveat. The Court further stated that even if an agreement had existed among the parties, it would be void under the Statute of Frauds because it was not in writing.

(Contributed by Sandi Wilson)

Jack Swerling to defend 75-year-old woman stunned with a Taser gun

Those Rock Hill cops have done it now. According to this article in the State, he has signed on to defend a 75-year-old woman stunned with a Taser gun by Rock Hill's finest.

When explaining why he is taking the case, Swerling said:

"Hitting an elderly lady with a Taser gun, why anybody would go to those lengths, I don't know. Plus, I like the lady."

S.C. Court of Appeals dismisses appeal from review board as untimely

In Blind Tiger v. City of Charleston, the Blind Tiger pub attempted to appeal a decision of the City's Architectural Review Board denying it permission to make alterations to the premises. Under S.C. Code 6-29-900 (A), an appeal must be filed within thirty days after the affected party receives actual notice of the decision of the board of architectural review. Blind Tiger contended it complied with the requirement contained in section 6-29-900 as it appealed within thirty days of receipt of the Board's written notice of the decision. The court of appeals disagreed because the Blind Tiger had oral notice of the decision many days prior to the receipt of the letter.

ACLU threatens to bring suits against upstate towns regarding prayers

The ACLU is threatening more lawsuits against Seneca, Anderson and Oconee counties if they do no cease to mention a specific deity in their opening prayers. Here is a letter from the ACLU to the state Attorney General.

Court of Appeals reverses family court order refusing to terminate parental rights

A South Carolina family court refused to terminate the parental rights of a father who had murdered the child's mother and had inhibited the child from receiving monies from the mother's estate. In Stinecipher v. Ballington, the South Carolina Court of Appeals reversed. According to the court:

We therefore find clear and convincing evidence that Ballington not only failed to send any money to aid in Austin's support, but that he actually prevented Austin from deriving the benefits of Edna's estate. Were it only a failure to send money to Austin, we might be inclined to defer to the trial court's determination that such a failure was not wilful; however, considering Ballington's actions which actually impeded Austin from receiving money from his mother's estate, we are compelled to find Ballington's failure to provide for Austin was wilful. Finding the Stineciphers proved a ground for termination of parental rights by clear and convincing evidence, we move on to determine whether termination would be in Austin's best interest.

. . . .

We find persuasive evidence in the record indicating that termination of Ballington's rights to Austin would be in Austin's best interest. Austin was only three-and-a-half years old when Ballington was incarcerated for the murder of Austin's mother, and Austin has since had no contact with Ballington. Because Ballington is serving a sentence of life without parole, there is no possibility that Austin would ever be able to have a normal father-son relationship with Ballington. Moreover, as numerous witnesses testified, including the guardian, Austin has bonded with the Stineciphers and has thrived in their care.

Hundreds attend Westbrook funeral

The AP has this account of the Marc Westbrook's funeral.

This comment adequately sums up the judge:

"He respected every person," said the Rev. Tommy McGill, who officiated the funeral. "It didn't matter if it was the chief or the bailiff in the courtroom. There was time to speak to each one."

HomeGold Executive Pleads Guilty

According to Myrtle Beach Online:

Karen Miller, the former chief financial officer of HomeGold Financial Inc., pleaded guilty Tuesday to a single charge of conspiracy, but her sentencing was deferred after prosecutors said she was cooperating with investigators.

Attorney General Henry McMaster said Miller's indictment was the first for a HomeGold executive and the fourth such action resulting from the state's investigation into the bankruptcy of HomeGold and its subsidiary Carolina Investors.

Constitution Day at Clemson University

Tonight at 7 p.m. in Clemson University's Lee Hall, I will be participating in a panel discussion on the Patriot Act. For my allotted time, I'll be discussing the government's historic treatment of civil liberties in times of war. Also on the panel are Judge William T. Howell (now the Fourth Circuit mediator), Johnny Gasser (U.S. Attorney for the District of S.C.), Joel Collins and Scott Sprouse (both fine trial lawyers). There is a reception at 6 p.m. before we get underway. Please come by and say hello.

Go Tigers!

Marc Westbrook RIP

Judge Marc Westbrook (Lexington County Circuit Judge) was killed this afternoon in a vehicle collision with an 18-wheeler. Judge Westbrook was one of our better circuit judges and will be missed.

Update: The State newspaper has this article on the death of Judge Westbrook and his clerk.

My analysis of Padilla

As noted last week, the Fourth Circuit has applied the Supreme Court's Hamdi opinion and held that an American citizen captured on American soil by civilian authorities may be detained indefinitely as an enemy combatant. As you will recall, Padilla flew to the United States in May 2002 in hopes of setting off a "dirty bomb." He was arrested by civilian law enforcement authorities upon his arrival at O'Hare International Airport in Chicago.

In Hamdi, the Supreme Court addressed "whether the Executive has the authority to detain citizens who qualify as 'enemy combatants'" (i.e., individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States in Afghanistan). It answered the question in the affirmative. Considering that Padilla was armed and guarding a Taliban fortress during the conflict in Afghanistan, the Fourth Circuit had little choice but to apply Hamdi. The purpose of the detention of enemy combatants is to prevent their return to the battlefield. In theory, both Padilla and Hamdi could have returned to Afghanistan and carried out attacks on American forces. The locus of the capture, according to the Fourth Circuit, is not a determinative factor.

The crux of the Padilla opinion is the "battlefield." Although Padilla was captured in the United States, his presence on the foreign battlefield was enough to tag him as an enemy combatant and to subject him to indefinite detention. The way I read the Fourth Circuit's opinion, had Padilla not been in Afghanistan, but nonetheless traveled to the U.S. to engage in an act of terrorism, he could not be detained as an enemy combatant. It would not matter that since the Afghanistan war he had become the lieutenant of Osama bin Laden. The Padilla opinion hammers home that the determinative factor is the battlefield.

During oral arguments, Judge Luttig tried to get the government to argue that in the War on Terror the entire United States is a battlefield. The government refused to take that step. I suspect that if incidents of terrorist attack at home increase, the government might widen its definition of battlefield and assert that terrorists captured within the U.S. (citizen or not) can be held indefinitely as enemy combatants. This will invest the Executive with a massive amount of power and should give us pause so long as the civilian court system is operational and capable of hearing evidence against the alleged terrorists.

Logically, this will be the next step in enemy combatant case law.

Justice Toal addresses court house security

WLTX has this report on the issue.

Fourth Circuit holds that Padilla may be detained until doomsday

From the Court's opinion:


The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.


For those of you interested in the oral arguments of this case, please see this post from July.

Fourth Circuit Rules Against the Navy

A three-judge panel has ruled that a U.S. Navy decision to place a jet landing field in eastern North Carolina was based on an incomplete and flawed environmental review process. The opinion in National Audubon Society v. Navy affirms a lower court ruling that stopped the Navy's development of its training field in eastern North Carolina.

The court held that the Navy must undertake a supplemental review, but that it may proceed with certain specific steps prefatory to possible construction of the landing field.

Plans to reform SC's Family Court System

State senators are currently discussing family court reform. Myrtle Beach Online has this report.

A South Carolinian remembers Rehnquist

Julius "Jay" Ness Richardson, a native of Barnwell, was one of the last law clerks to work for Chief Justice Rehnquist. Jay's thoughts on the Chief appear in this article in The State.

S.C. Supreme Courts issues opinion on commercial landlord's duty to protect from criminal acts

Jackson v. Swordfish Investments dealt with a shooting at a nightclub. The property was owned by Swordfish and leased to the nightclub proprietor. After Jackson was shot at the club, she sued Swordfish and argued that Swordfish had a common law duty to protect her from the criminal acts of a third party. The Court rejected the argument and reasoned as follows:

Although Swordfish agreed to arrange for security in the common areas at the tenant's expense, there is no evidence in the record Swordfish ever agreed to provide security inside the club. Swordfish had neither possession nor control over the activities inside the club when Appellant was shot. Therefore, no duty arose, under the affirmative acts exception, on the part of Swordfish to protect its tenants or their patrons from the criminal acts of third parties occurring inside the club.

Remembering William Rehnquist

Slate has a good essay up on Rehnquist. Here is a taste:


The chief's chambers ran like clockwork. We had a routine, and it worked well. He knew his job, and he knew he was good at it. He knew a staggering amount of law and was scarily quick at seeing and getting to the heart of any question. To prepare for oral arguments, the chief preferred not to read long, heavily footnoted memos, opting instead for talking through problems with his clerks, while walking around the block outside the Supreme Court building--sometimes twice, for a particularly tricky case. It was surprising, and always funny, that so few of the gawking tourists around the court recognized the chief justice as he ambled around Capitol Hill, doing his work. (He didn't mind at all).

S.C. Supreme Court to hear Pittman appeal from Zoloft case

According to WCNC.com:

The South Carolina Supreme Court has agreed to hear the appeal of 16-year-old Christopher Pittman, who mounted a Zoloft defense before he was convicted of the shotgun slayings of his grandparents.

Pittman was convicted last February of the murders of Joe Pittman, 66, and Joy Pittman, 62, in their Chester County home in November 2001. The youth, who was 12 at the time of the slayings, was sentenced to 30 years in prison.

S.C. Supreme Court holds social hosts liable for underage drinkers

In Marcum v. Bowden, the state supreme court held that a social host is subject to liability when that host has provided alcohol to an underage person who is subsequently injured or dies as a result.

Fourth Circuit denies EPA's requestion for rehearing

According to the AP:

A federal appeals court has refused to reconsider a ruling that Duke Energy Corporation did not need the Environmental Protection Agency's permission when it made improvements between 1988 and 2000 at eight power plants in North Carolina and South Carolina.The modifications allow the plants to emit more pollutants because they can operate for more hours, but a three-judge panel of the 4th U-S Circuit Court of Appeals ruled in June that it didn't matter because the hourly rate of emissions would not increase.

E-P-A asked the full appeals court to rehear the case. The court issued a brief order denying the request.

Crisis in South Carolina Probation Office

The Federal Times has an article up on budget woes for South Carolina's probation office. Here is a taste:


Patrick Culbertson, the chief probation officer for the U.S. District Court of South Carolina, says his employees keep an eye on some shady characters--convicted sex offenders, thieves, drug offenders.

When they are released from federal prison, it's up to Culbertson and his staff of 134 to keep them from slipping back to their criminal ways.

His biggest hurdle is not the cat-and-mouse evasion tactics of those he’s duty-bound to watch over, but rather his office’s budget. Culbertson has lost 23 employees--including six probation officers--in the last two years, and he doesn't have money in the budget to replace them. So his remaining 87 officers and other support staff must make hard choices over whom they watch. They ultimately prioritize their time to focus on pedophiles and others they believe are more dangerous to the public. Those they deem lower risks get less or no attention.

Profile of Hemphill Pride II

The State newspaper has a profile up on the controversial Hemphill Pride II, who is a former law partner of Judge Matthew Perry.

Ruling expected this week in S.C. school funding suit.

The Charlotte Observer has this article on the Allendale case. At base, the lawsuit was filed by 34 poor districts, claiming that South Carolina's system of paying for public education is inadequate and unfair under the state Constitution.

Cell phones in the courtroom--maybe a thing of the past

The State newspaper this story on the problem cell phones cause in the courtroom. The report indicates that Chief Justice Toal is considering a total ban on cell phones.

Fourth Circuit reverses district court order enjoining anti-Falwell website

In Lamparello v. Falwell, the Fourth Circuit reversed a district court order enjoining Lamparello from maintaining a website critical of Reverend Jerry Falwell. Lamparello registered the domain name www.fallwell.com to respond to what he believed were "untruths about gay people." The homepage advised that the website was not affiliated with Jerry Falwell.

First, the Fourth Circuit rejected Falwell's Lanham Act claim (trademark claim). The court found that although the domain name of Lamparello's website, www.fallwell.com, closely resembled Falwell's mark, Lamparello clearly created his website intending only to provide a forum to criticize ideas, not to steal customers. Hence, there was no likelihood of confusion--Falwell's trademark was not infringed.

The Fourth Circuit also rejected Falwell's cybersquatting claim. The Fourth Circuit concluded that Reverend Falwell could not demonstrate that Lamparello "had a bad faith intent to profit from using the [www.fallwell.com] domain name." Lamparello was simply exercising his First Amendment rights to criticize Falwell's stance on homosexuals.

The Court reversed the district court's grant of summary judgment and entered judgment for Lamparello.

S.C. Supreme Court issues proximate cause opinion in railroad case

In Peterson v. National Railroad Passenger Corporation, the Supreme Court affirmed a grant of summary judgment in a railroad negligence case. The incident occurred when an operator of a street sweeper machine feel asleep and his machine collided with the railroad tracks. The impact of the sweeper knocked the track several inches out of alignment. This malalignment caused derailment in which Peterson suffered injuries.

Plaintiffs argued and offered expert testimony that the railroad did not properly maintain the area of the track where the derailment occurred. They claimed that but for the railroad's negligence, the sweeper would not have misaligned the track to such a degree that the train would have derailed. The Supreme Court held that the expert testimony was insufficient to establish proximate cause:


None of the experts were willing to say that, had Respondents maintained the ballast in accordance with their own internal policies, such an impact would not have affected the rail to a degree that the train would have derailed. Moreover, none of the experts testified as to the amount of force necessary to knock an identical track with a six-inch ballast shoulder out of alignment. In fact, no testimony was presented that the track would maintain the necessary alignment had the sweeper jumped the crossties and struck the rail.

Accordingly, while evidence may exist that Respondents did not comply with their own internal safety policies, there is no evidence that this noncompliance caused the train to derail. Instead, the evidence overwhelmingly shows that the cause of derailment was the impact of the sweeper.

S.C. Supreme Court issues defamation opinion

In Anderson v. The Augusta Chronicle, the Supreme Court upheld a court of appeals decision reversing a directed verdict in a defamation case brought against a newspaper. The allegedly defamatory editorial stated as follows:

Clearwater Democrat Tom Anderson, running in November’s court-ordered special election for South Carolina’s House District 84 seat, has been exposed as a liar.

He told this newspaper he was called away to National Guard duty in the last weeks of the 1996 election, his first race against incumbent state Rep. Roland Smith, R-Langley. (Anderson lost by a decisive margin.)

It turns out, however, the state Guard has no record of Anderson ever serving – either then or any other time.

The trial judge ruled that Anderson failed to show that the editor responsible for publishing the article knew that information in the article was false and, therefore, there was no issue of fact as to whether the editor acted with "actual malice." The court of appeals reversed.

The Supreme Court affirmed the court of appeals, holding that there was circumstantial evidence of actual malice.

The AP has this account of the lawsuit.

Fourth Circuit issues social security fee opinion

In Mudd v. Barnhardt, the Fourth Circuit held that although under the statute a court may only award attorney fees for court-related work in a Social Security case (no fees may be awarded for ALJ-level work), a district court may consider as one factor in its reasonableness determination, the time spent and work performed by counsel on the case when it was pending at the agency
level. According to the court:

This was appropriate insofar as it gave the district court a better understanding of factors relevant to its reasonableness inquiry, such as the overall complexity of the case, the lawyering skills necessary to handle it effectively, the risks involved, and the significance of the result achieved in district court.

Profile of Fourth Circuit Judge Blane Michael

The Charleston Daily Mail has a good three page article up on Judge Blane Michael.

Graniteville train derailment settlement approved

A Motley Rice press release gives some details.

Judge rules Confederate letters belong to state

According to WIStv. com, federal bankruptcy Judge John Waites has ruled that a collection of rare, Civil War-era letters belong to the state and not Thomas Willcox . Willcox tried to auction off more than 400 letters he has had in his family for generations. Willcox filed for bankruptcy soon after.

Many of the letters are correspondence between generals or the Confederate government and South Carolina Governors Francis Pickens and Milledge Bonham during the Civil War. Three are written by Confederate General Robert E. Lee.

The bankruptcy judge ruled Monday that the letters deal with the official duties of the governor and therefore are public records.

Background information on the letters can be found here.

The Charlotte Observer offers this account of the judge's decision.

S.C. Senate subcommittee discusses doctor apology bill

According to Myrtle Beach On Line:

Just months after passing sweeping changes in the state's medical-malpractice law, a Senate subcommittee is holding a series of public meetings to talk about altering the laws again.

The first of four gatherings Tuesday discussed a trend encouraging doctors to apologize and offer settlements before cases go to court.

About 17 states have already passed so-called "I'm sorry" laws, said Doug Wojcieszak, spokesman for Sorry Works - a group of doctors, lawyers and patients pushing for the reforms they say not only reduce the number of medical malpractice cases that go to trial but also encourage doctors and other health care workers to learn from their mistakes.

The system requires hospitals to investigate every unexpected death and expects doctors, nurses and anyone else involved to cooperate.

Normally in malpractice suits, defense lawyers advise everyone not to talk about any part of the case.

If the hospital finds negligence or a mistake caused the death, the person responsible meets with the family and apologizes.

The family then is offered a settlement with attorneys warning them any effort to take the case to court will be fought "to the end," Wojcieszak said.

Several of the senators at the meeting Tuesday said the idea was interesting and expect for it to be discussed next year.

S.C. Supreme Court holds there is no constitutional right to a jury trial in inverse condemnation cases

In Cobb v. SCDOT, the state Supreme Court held that "because an eminent domain action and an inverse condemnation action are treated equally under our constitution, we hold there is no constitutional right to a jury trial in an inverse condemnation case just as no such right exists in an eminent domain case."

There is, however, a right to jury by jury granted via statute in both types of cases.

NAACP and Myrtle Beach begin mediation of bikefest dispute

Myrtle Beach on line has this report. The crux of the dispute is that the NAACP alleges discrimination against black visitors during the Atlantic Beach Bikefest by use of a one-way traffic pattern.

S.C. Supreme Court upholds SJ in med mal action

In David v. McLeod Regional Medical Center, the state supreme court upheld a grant of summary judgment in a med mal action because an affidavit submitted in opposition to the motion did not establish the prospective expert's knowledge of the standard of care. According to the Court:

A doctor need not practice in the particular area of medicine as the defendant doctor to be qualified to testify as an expert. Creed v. City of Columbia, 310 S.C. 342, 345, 426 S.E.2d 785, 786. (1993). However, regardless of the area in which the prospective expert witness practices, he must demonstrate to the court that he is familiar with the applicable standard of care for the medical procedure under scrutiny before he may be qualified as an expert witness. Again, despite Dr. Frist's qualifications, his affidavit does not provide that he is familiar with the standard of care he alleges was breached. Therefore, we hold that the trial court did not err in granting summary judgment in favor of Respondents.

Wiccan priestess asks Great Falls to pay attorney fees

Darla Wynne, who successfully sued to stop the town of Great Falls from invoking Jesus in legislative prayers, is filing a motion to have the town pay her more than $65,000 legal bills. The amount is about 7 percent the town's annual budget.

CBS has this story on the petition for fees.

S.C. Supreme Court issues employment at will decision

In Cape v. Greenville County School District, the South Carolina Supreme Court was asked to determine if an employee contract for a definite term was terminable at-will, for any time and for any lawful reason, pursuant to a provision in the contract stating that the employment contract was at-will. The plaintiff, a special education teacher, signed a contract with the school district that specified that the term of the contract was the 2001-2002 school year.

For purposes of its opinion, the Court accepted the position of the plaintiff that she was terminated without cause prior to the termination of the school year. Notwithstanding the fact that the contract was for a definite term, the Court held upheld summary judgment in favor of the school district based on the following language in the contract: "THIS IS AN AT-WILL EMPLOYMENT CONTRACT. IT MAY BE TERMINATED AT ANY TIME FOR ANY REASON OR FOR NO REASON BY EITHER EMPLOYER OR EMPLOYEE. EMPLOYEE AGREES THAT THERE EXISTS NO RIGHT TO CHALLENGE TERMINATION OF THIS CONTRACT BY EMPLOYER."

The Court recognized that a contract for a definite term is presumptively terminable only with cause. However, it reasoned that the parties had altered these presumption by including an at-will termination clause in the contract.

(Entry contributed by Sandi R. Wilson)