The Catawba Indian Nation sues for video poker

According to the Rockhill Herald:

The Catawba Indian Nation filed a lawsuit against the state of South Carolina on Thursday, claiming the tribe has the right to video poker on its York County reservation because the state lottery has hurt its bingo business.

Jay Bender represents the tribe.

Fourth Circuit reinstates defamation suit against New York Times

In Hatfill v. The New York Times, Dr. Steven J. Hatfill sued The New York Times and columnist Nicholas Kristof for defamation and intentional infliction of emotional distress. Hatfill's claims arose from The Times' publication of a series of Kristof's columns concerning the federal investigation into the mailing of letters laced with anthrax in the fall of 2001. Five people died in the attacks, which heightened national anxieties after the Sept 11 attacks. The district court dismissed Hatfill's complaint under Rule 12(b)(6).

After an examination of the Kristof columns, the paneconcludeded that a "reasonable reader" of Mr. Kristof's columns would have concluded that Dr. Hatfill was responsible for the anthrax attacks and that the columns intentionally inflicted emotional distress on him.

A New York Times account of the ruling can be found here.

S.C. Court of Appeals issues arbitration opinion

In Wellman Inc. v. Square D, the court of appeals reversed a trial court decision denying arbitration. According to the appellate court, the trial court did err in holding that all claims must be resolved in one forum out of the interest of judicial economy.

This case is but the latest example of South Carolina's judicial policy of favoring arbitration.

S.C. Supreme Court issues subject matter jurisdiction opinion

Johnston v. LLR, concerned the suspension of a licensed real estate appraiser. Pursuant to statute, the Labor and Licensing Board is required to serve written notice of such a decision on the effected person within thirty days of issuing a final order. The Board failed to do so. The state court of appeals held that this failure deprived the Board of subject matter jurisdiction. The Supreme Court reversed. According to the Court:

Although the 30-day time requirement is mandatory, it is not jurisdictional. Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong. Dove v. Gold Kist, 314 S.C. 235, 442 S.E.2d 598 (1994). The failure to comply with a mandatory time requirement for serving a written decision does not affect the jurisdiction of the Board to determine the real estate appraiser disciplinary matter. The failure of the Board to meet the deadline does not render the order a nullity.

We conclude the order is valid, but ineffective, until it is served upon the appraiser.

. . .

We note that, although the thirty-day time limit is mandatory, the Legislature has not provided how that mandate is to be enforced. There is no language regarding the consequences if the Board misses the deadline for serving written notice of its decision on the appraiser. Accordingly, we will not assume the Legislature intended the Board to lose its power to act for failing to comply with the statutory time limit.

S.C. for Judge Roberts

On Tuesday, a group of South Carolina lawyers, politicians and business people launched http://www.scforjudgeroberts.com/ in an effort to increase support within the state for the Roberts nomination. Daniel B. White, a Shareholder with the Greenville firm of Gallivan, White & Boyd, P.A., is the chairman.

The State newspaper has this article on White's efforts.

Fourth Circuit holds that inmate suicides were 'accidents' and thus 'occurrences' under insurance policy

Columbia Casualty v. Westfield Insurance dealt with two inmate suicides at a county jail in West Virginia and whether the incidents should have been covered by the county's liability insurance. The Fourth Circuit certified a question to the West Virginia Supreme Court asking whether state law would find the suicidal deaths to be considered "occurrences" under Westfield's liability policy. The question was answered in the affirmative and adopted by the Fourth Circuit.

A news report on the suicides and case can be found here.

S.C. Supreme Court holds that preparation of notice of appeal by administratrix constitutes practice of law

In Brown v. Coe, the Supreme Court considered whether it is proper to dismiss an appeal on the ground that the notice of appeal was served and filed by a non-lawyer in violation of S.C. Code Ann. 40-5-310 (2001). This was the first time the Court has specifically addressed whether a non-lawyer executor or personal representative can represent an estate in matters such as an appeal. The court held that the administratrix did engage in the unauthorized practice of law:

In the case at hand, the filing of a notice of appeal on behalf of the estate and preparation of briefs that will be required to further perfect this appeal clearly constitutes the practice of law as defined by this Court. Section 40-5-310 prohibits appellant who, while the administratrix of the estate, is not a lawyer, from taking such actions on behalf of the estate because the estate is a separate legal entity with interests other than Ms. Brown's alone. Moreover, the further reasoning employed by this Court in previous opinions, that such a prohibition is necessary to protect the public from representation by those unlearned in the law, also applies to the situation at hand, as noted by many of the courts cited above.

The court gave the appellant 30 days to hire a lawyer or face dismissal of the appeal.

Passing of George D. Haimbaugh

Long-time USC School of Law Professor George D. Haimbaugh Jr. died July 18. Many South Carolina lawyers had Professor Haimbaugh for Constitutional Law, and they will remember him as a gentleman-scholar.

The State newspaper ran this obituary.

Controversy surrounds NAACP Bikefest settlement

The NAACP settled a lawsuit in April with J. Edward Fleming, who owns J. Edward's restaurant in Myrtle Beach, when he agreed to pay an undisclosed amount and to keep his restaurant open during Bikefest. Fleming had closed his restaurants during previous Bikefests. The settlement was confidential per the order of U.S. Magistrate Judge Thomas Rogers.

Lawyers for Myrtle Beach argued that the documents could reveal financial motives behind other lawsuits against the city and various Grand Strand businesses. The documents could "provide proof that 'profit' is an alternative basis for plaintiff's lawsuits, not merely to 'right' a civil injustice," the city's motion to view settlement documents said.

The court has granted Myrtle Beach's motion and lawyers for the city will view the settlement documents some time in the coming days.

The Charlotte Observer has this article on the lawsuit.

Fourth Circuit hears arguments on Navy's Outlying Landing Field

Yesterday lawyers for the Navy asked the Fourth Circuit Court of Appeals to overturn a lower court decision that stops the Navy's plans to build the OLF in Washington County, North Carolina. The appeal centers on environmental issues. The main argument is whether or not the Navy fully studied the environmental impact on the Washington County site. Because of environmental concerns, a district judge enjoined construction.

A news article on the case can be found here.

South Carolina Supreme Court Clarifies Handbook Law

In it most recent analysis of Hessenthaler v. Tri-County Sister Help, Inc., Opinion No. 25650, the Court held that an equal opportunity non-discrimination policy in the employer's handbook did not constitute a promise that altered the plaintiff's at-will employment status.

The plaintiff argued that her employer, which did not have a sufficient number of employees to bring it within the purview of Title VII, constructively discharged her employment on the basis of her race in violation of the policy. The Court reasoned that unlike a mandatory, progressive disciplinary policy, "a general policy statement of non-discrimination does not create an expectation that employment is guaranteed for any specific duration or that a particular process must be followed before an employee may be fired."

According to the Court, to be contractually enforceable, "general policy statements must be definitive in nature, promising specific treatment in specific situations." Since the non-discrimination policy at issue did not make any promises regarding disciplinary procedure or termination decisions, it did not create an enforceable contract.

Of equal significance for South Carolina employers who typically find themselves on the losing end of handbook cases and hitherto rarely obtained summary judgment, the Court noted that it is incumbent on South Carolina courts to intervene and resolve handbook cases as a matter of law if both the policy at issue and the disclaimer, taken together, clearly establish that a promise does not exist. Since the South Carolina legislature defined what constitutes what a conspicuous disclaimer last year in response to prior, more plaintiff oriented handbook cases, and this case clarifies and arguably narrows the definition of an enforceable promise, employers have some reason to hope that the tide is turning in their favor.

(Entry contributed by Sandi R. Wilson)

Report on Fourth Circuit Padilla Arguments

I had a source present in Richmond at oral arguments this morning. Here are the high points of the arguments, in which Judge Luttig was very active.

The Government's main contention was that the Supreme Court's Hamdi opinion controls; that the case of our dirty bomber/ American citizen is no different than Hamdi. Padilla took up arms in Afghanistan, eventually escaped from the region, and traveled to the U.S. where he contemplated terrorist attacks. He is an enemy combatant.

Judge Luttig pressed the government to argue that because the entire United States is a "battlefield," Padilla's situation is the same as Hamdi's. Padilla was simply captured on a battlefield in the U.S., whereas Hamdi was captured on a foreign battlefield. The government was very reluctant to follow this line of reasoning. One would expect that the President does not want the official position to be that the entire United States is a battlefield no different than Afghanistan.

Padilla's lawyer rejected that a battlefield could exist in a place where civil courts were operational. Hence, he argued that the United States could not be a battlefield at this time. In response to this assertion, Luttig stated unequivocally that the Supreme Court's Hamdi opinion was not limited to "battlefield" captures of enemy combatants and that Padilla's lawyer should stay away from a "battlefield" argument.

Judge Blane Michael's questions indicated that he rejected Luttig's suggestion to the Government that the U.S. is a battlefield. Judge Michael indicated the detention of Padilla depended on the law of war, not the location of a "battlefield."

Judge Luttig then offered the following hypo to Padilla's lawyers: The President learns that a terrorist has arrived at an American airport with plans to kill Americans, can the president order that the terrorist be detained? Padilla's lawyer said that only law enforcement officials could detain the terrorist, not the military. This earned a scoff from Judge Luttig, but Judge Michael attempted to bail out the lawyer by stating that of course the president could detain the terrorist: the question is what must be done with the terrorist after the detention.

From the tenor of the arguments, it is likely that the Fourth Circuit will apply Hamdi to the facts of Padilla. The result will be that the government is not required to charge Padilla in United States District Court. At most, he will be entitled to challenge his enemy combatant status in front of a military tribunal.

S.C. Dist. Judge Henry Floyd's Padilla Opinion to be tested this morning

As I noted yesterday, the Fourth Circuit will hear arguments this morning in the Padilla case. Judge Floyd's opinion under review essentially held that the federal government cannot indefinitely detain an American seized on American soil; the government must either charge himwith a crime or release him.

The federal government has faced much criticism from both the Left and Right for its handling of Padilla. The liberal People for the American Way and the Conservative Rutherford Institute have filed a joint Amicus Brief arguing that the extra-judicial detention of an American citizen seized on American soil requires Congressional authorization. Absent this, Padilla must be brought before a court before being deprived of liberty.

I'll have more posts on the course of the argument.

Tuesday Fourth Circuit to Consider Padilla Case

The Court will consider tomorrow whether the president can indefinitely detain, without criminal charges, a U.S. citizen captured on American soil in the so-called War on Terror. Jose Padilla is the U.S. citizen who supposedly plotted to detonate a "dirty bomb." Since his capture at Chicago's O'Hare Airport he has not been charged with any crime. Earlier this year a federal judge ordered the government to charge Padilla with a crime or release him within 45 days. It is this ruling that the government is appealing.

A news report on Padilla can be found here.

Washington Post Profiles Fourth Circuit's Michael Luttig

In considering potential Supreme Court nominees, the Washington Post has this profile of Judge Luttig.

Effective assistance of counsel opinion issued by Fourth Circuit

In United States v. Taylor, the Fourth Circuit considered whether a criminal defendant has a federal constitutional right to effective assistance of counsel with regard to a post-conviction, post-direct appeal motion for reduction of sentence made by the government pursuant to Federal Rule of Criminal Procedure 35(b). The court held there is no such right:


Because a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when the government makes a motion which can only benefit him by reducing his already final sentence.

Fourth Circuit denies qualified immunity to wrestling coach

In Meeker v. Edmundson, the Fourth Circuit affirmed a district court ruling that a public high school wrestling coach was not entitled to qualified immunity from a claim that he instituted and encouraged repeated beatings of a student by other members of the team.

According to the Complaint, Coach Edmundson employed the beatings as "his sole means of discipline" and as a way to force an unwanted member to quit the team, which had a purported no-cut policy. Edmundson allegedly told Meeker that the beatings would continue until Meeker "toughened up and stopped crying," and the coach prevented disclosure of the abuse by "intimidation and retaliation, including more . . . severe beatings."

The panel concluded that no a reasonable school official could have believed the challenged conduct to be lawful, in light of clearly established law at the time of the beatings; therefore, no qualified immunity for the coach.

Jasper County files final arguments in suit over $450 million terminal

According to the Beaufort Gazette:

Jasper County on Thursday filed its final argument against the S.C. State Ports Authority in the pending state Supreme Court lawsuit over who can build a $450 million cargo-container terminal on the South Carolina side of the Savannah River.

For more than a decade, Jasper officials have worked toward bringing a port to their county, and when the county struck a development deal with a private port builder, the State Ports Authority responded with a lawsuit in the high court.

. . .

The State Ports Authority controls the fourth-largest cargo container system in the country through ports in Charleston, Georgetown and Port Royal.

The agency's enabling legislation, penned in 1932, empowers the agency "to promote, develop, construct, equip, maintain and operate a harbor or harbors within this state on the Savannah River."

Jasper's attorneys contended that nothing in the legislation makes those powers exclusive -- and under home rule, a state law designed to move local government issues out of Columbia, the county has the right to build.

S.C. Supreme Court issues opinion on attorney's misdeeds as binding client

Koutsogiannis v. BB&T, an opinion released yesterday, arose out of a collection action in which the bank erred in tracking and calculating the payments owed by Koutsogiannis. The bank's error hurt Koutsogiannis's credit and he was unable to close on a very profitable real estate deal.

At trial, Koutsogiannis sought to recover damages based on BB&T's misconduct in handling the loan matter and vicarious liability for the BB&T's Attorney's (outside counsel) misconduct in attempting to collect the debt and preparing the draft order for summary judgment that incorrectly implied Koutsogiannis had been heard on certain counterclaims. As to Attorney, Koutsogiannis asserted Attorney engaged in dilatory tactics which intentionally prolonged the unsuccessful settlement negotiations. With respect to the preparation of the summary judgment order, Koutsogiannis asserted Attorney intentionally sought to deceive the trial court and injure him. At trial, a jury awarded Koutsogiannis $98,000.00.

On appeal, BB&T argued that because a client may not be vicariously liable for the conduct of its outside counsel, the trial court erred by failing to charge the jury on the law of independent contractor. The Supreme Court disagreed, holding that outside counsel's engagement in settlement negotiations and in the preparation of the proposed summary judgment order was clearly within the scope of authority set out to him by BB&T. Any misconduct engaged in by outside counsel during those actions was directly attributable to BB&T.

Of course, normally to hold a principal liable in tort for the acts of an agent, the agent must be a servant. Here, the court focused on the attorney-client relationship. My guess is that the holding in this case is only pertinent to attorney misconduct.

Physician Non-Competes

There has been a growing debate in the S.C. Bar on whether non-compete clauses found in physician employment agreements should be enforceable. Many believe these clauses violate public policy. The Tennessee supreme court, in a case instructive for S.C. attorneys, recently held that non-compete clauses in physician employment agreements are unenforceable and void unless they're specifically established by the state legislature. The opinion was based on public policy concerns. An article discussing the opinion can be found here. I'll link to the opinion as soon as it is up on the Tennessee supreme court web site.

Fourth Circuit's Karen Williams for Supreme Court?

This op-ed from The Times and Democrat makes the case for a Williams nomination to the High Court. The piece concludes that

Williams's connection with a conservative court coupled with the prospect of broad bipartisan support could make the Orangeburg judge just what this President Bush is looking for in this era of battles over confirmation of judicial appointees.

S.C. Supreme Court Delays Execution

According to this report, the state Supreme Court has delayed the execution of James Robertson. Robertson had received permission in February to drop all his appeals and be put to death. Last month, Robertson filed court papers saying he deserved a new trial because his defense attorneys were ineffective and prosecutors committed misconduct during his 1999 trial.

Robertson allegedly stabbed his mother to death and beat his father with a baseball bat and claw hammer in their Rock Hill home in November 1997. Prosecutors say his motive was collection of a $2.2 million inheritance.

Fourth Circuit Reverses S.C. Dist. Judge in Extradition Suit

In Young v. Nikols, a Fourth Circuit panel examined a dismissal of a prisoner's complaint brought under 42 U.S.C. section 1983 which alleged that his extradition rights had been violated. Because the prisoner could not establish that his underlying criminal judgment had been invalidated, the district court held that his complaint is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

The Fourth Circuit reverses, holding that Heck only bars a prisoner's section 1983 claim if the relief sought necessarily implies the invalidity of his criminal judgment. Mr. Young's section 1983 damages claim for illegal extradition does not imply that his criminal judgment is invalid; therefore, Heck did not require the dismissal of the complaint.

Fourth Circuit's J. Harvie Wilkinson III receives strong endorsement

The influential conservative columnist George Will has written an essay urging President Bush to nominate J. Harvie Wilkinson III to fill the Supreme Court vacancy.

Historical Perspective on the Haynsworth Nomination

My good friend Matthew Richardson forwarded this memo written by William Rehnquist. The memo was written in 1969 when Rehnquist was evaluating potential Supreme Court nominees for President Nixon. It is an evaluation of Fourth Circuit Judge Clement Haynsworth. Rehnquist endorsed him as a strict constructionist. The memo provides historical insight into the selection process and insight into Chief Justice Rehnquist's thinking about the law.

Haynsworth was eventually nominated to the Supreme Court by President Nixon to replace Abe Fortas. Haynsworth was defeated by a 55-45 vote--19 Democrats and 26 Republicans voted for Haynsworth while 38 Democrats and 17 Republicans voted against the nomination. Haynsworth was the first Supreme Court nominee since John J. Parker to be defeated by the Senate.

Chief Judge Wilkins Mentioned for High Court

According to this article in the Greenville News, the White House is considering the Fourth Circuit's Chief Judge as a possible replacement for Justice O'Connor. From my time clerking, I can tell you that Chief Judge Wilkins is a strong leader. Once Rehnquist steps down, Chief Judge Wilkins would be an excellent choice not just for Justice, but Chief Justice of the United States. Chief Judge Wilkins was the first chairman of the United States Sentencing Commission and has considerable expertise in criminal law.

Fourth Circuit Reinstates Nudist Lawsuit

In White Tail Park v. Stroube, the Fourth Circuit held that the American Association for Nude Recreation-Eastern Region had standing to challenge a Virginia state law requiring an adult to accompany each participant in a summer camp for young nudists. The Court held that the organization could make a First Amendment claim regarding the law.

S.C. Ct. App. Reverses Summary Judgment on FLSA Case

Miller v. Blumenthal Mills concerned overtime pay for mill workers. In order to recover for a violation of section 207(a)(1) of the Fair Labor Standards Act, an employee must prove (1) he worked overtime hours without compensation; (2) the amount and extent of the overtime work as a matter of just and reasonable inference; and (3) the employer had actual or constructive knowledge of the overtime work.

The court found that the following was enough to survive a summary judgment motion in the case of Patricia Miller.

Patricia testified she had been trained and instructed by Blumenthal to engage in this pre-shift activity. Patricia specifically named the trainers, supervisors, and other members of management who had directed her to perform this pre-shift work. Patricia indicated there were a number of employees who heard the trainers, supervisors, and members of management when they instructed her in this regard. Unlike Darrikhuma, who performed his overtime hours on the weekend when management was not on site, Patricia performed her work during working hours and during a time when management was present at the mill. In contrast to Darrikhuma, who was threatened with termination if he worked the extra hours, Patricia testified that, when she was working uncompensated, pre-shift hours, one of her supervisors "would come by and tap [her] on the shoulder and say, 'Good job,' and keep right on getting it."

The Court, however, affirmed the grant of summary judgment as to Ernest Miller:

the deposition of Ernest is imbued with generalities, lack of particularity, vagueness, and inexactitude in regard to any mandatory, specific pre-shift activities. The conclusory and non-specific testimony of Ernest fails to survive the grant of summary judgment. We agree with the circuit judge in his grant of summary judgment as to all claims of Ernest.

The Honorable Karen Williams Mentioned for U.S. Supreme Court Vacancy

According to this report, Judge Karen Williams of the Fourth Circuit Court of Appeals has been mentioned as a replacement for Justice O'Connor. From my knowledge of the Fourth Circuit, Judge Williams would be an excellent choice and I have been surprised that her name has not come up before.

S.C. Supreme Court Overturns $4.1 Million Verdict

Webb v. CSX Transportation involved a fatality at a Pelzer, South Carolina, railroad crossing. The jury awarded Plaintiff $3 million actual damages in his wrongful death action; $250,000 actual damages in the survival action; and $875,000 punitive damages.

A key issue on appeal was the emphasis in Plaintiff's closing argument of CSX's failure to repair a bridge. Earlier in the case the trial judge held that the failure to repair was not the proximate cause of the accident. The Supreme Court found that such a closing argument was unduly prejudicial:

The trial judge's ultimate correct conclusion that the failure to replace the bridge was not a proximate cause of the accident renders all this evidence and argument irrelevant, to the extreme prejudice of CSX. We hold that these circumstances require a new trial absolute.

The Court also offered this on the punitive damages issue:

It is clear that much of the evidence of acts in other jurisdictions, including CSX and other railroads, and of acts unrelated to crossing safety in South Carolina admitted in this trial is not constitutionally permissible under Campbell [State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)] . We reverse the punitive damage award and instruct that on retrial, evidence sought to be admitted on the issue of punitive damages should be closely scrutinized for its relationship to the particular harm suffered by the Plaintiff.

This instruction on punitive damages is yet more evidence that the Court is very seriouss that evidence on the issue of punitive damages must directly relate to the harm suffered by the Plaintiff.