Wednesday, August 31, 2005

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.

Tuesday, August 30, 2005

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.

Monday, August 29, 2005

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.

Friday, August 26, 2005

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 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,, 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 [] 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.

Wednesday, August 24, 2005

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.

Tuesday, August 23, 2005

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.

Friday, August 19, 2005

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.

Thursday, August 18, 2005

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.

Wednesday, August 17, 2005

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.

Tuesday, August 16, 2005

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.

Monday, August 15, 2005

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.

Friday, August 12, 2005

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)

Inglis and DeMint weigh in on Judge Shedd's new chambers

The State newspaper has this report.

Thursday, August 11, 2005

Fourth Circuit upholds Pledge of Allegiance

In Meyers v. Loudoun County Public Schools, the Fourth Circuit rejected a challenge to a Virginia Recitation Statute which provides for daily, voluntary recitation of the Pledge of Allegiance in Virginia's public schools. The Court held that the Pledge is not a religious exercise and does not threaten an establishment of religion. According to Judge Karen Williams:

If the founders viewed legislative prayer and days of thanksgiving as consistent with the Establishment Clause, it is difficult to believe they would object to the Pledge, with its limited reference to God. The Pledge is much less of a threat to establish a religion than legislative prayer, the open prayers to God found in Washington's prayer of thanksgiving, and the Declaration of Independence.

The New York Times has this story on the opinion.

Here's another article on the case from The Examiner.

Wednesday, August 10, 2005

Petition for Cert filed in Fourth Circuit Witch Case

According to the Richmond Times-Dispatch:

The American Civil Liberties Union has asked the U.S. Supreme Court to review a decision that allows the Chesterfield County Board of Supervisors to exclude a local witch from leading the prayer at open meetings.

The ACLU of Virginia yesterday filed its petition with the court seeking to reverse a Fourth Circuit Court of Appeals decision, said ACLU attorney Rebecca K. Glenberg.

"Our position is that the 4th Circuit did something really extreme in its decision," she said. "It held that it was acceptable for a government body to treat people differently because of religion."

Cynthia Simpson, a witch who lives in Chesterfield, requested in 2002 to be placed on a list of religious leaders invited to deliver the invocation at meetings of the Board of Supervisors. So far, her request has been denied.

The case is Simpson v. Chesterfield Bd.

Tuesday, August 09, 2005

S.C. Supreme Court holds proper findings must be made before judge can close a physician disciplinary hearing

In Island Packet v. Kittrell, the state Supreme Court considered the power of an administrative judge to close a physician disciplinary hearing without making formal findings. Island Packet requested the state Supreme Court to require the Administrative Law Court ("ALC") to issue a written order explaining its decision to close a 2004 review of the Medical Board's order despite Island Packet's requests to be present and to be given an opportunity to object to any attempt to close the proceedings. The Court ruled in favor of Island Packet, noting that

The ALC's order does not comply with South Carolina law because specific findings regarding why the proceedings should be closed were not made on the record. While the ALC did not err by closing the proceedings given the disciplinary proceedings were still in the investigatory stage, the ALC is still required to make specific findings on the record, especially given the fact Island Packet had directly requested an opportunity to be present and privy to the proceedings. The ALC should have engaged in an analysis that balanced the interests of the physician and the public and should have explained the need for closure. Therefore, the ALC could not seal the records until after specific findings, as to why closure was necessary, were made on the record. Because the findings were not made, this matter is remanded to the ALC for that purpose.

The State Newspaper has this account of the ruling.

Monday, August 08, 2005

Controversy surrounds Judge Shedd's new chambers

According to the AP:

Taxpayers will foot a $2.5 million bill to lease office space in Irmo for a federal appeals court judge because officials say there is no space available in the recently constructed $40 million federal courthouse in Columbia.

The 4,224-square-foot unmarked building is being built solely for Judge Dennis Shedd, who was appointed three years ago to the 4th U.S. Circuit Court of Appeals in Richmond, Gary Mote, a spokesman for the U.S. General Services Administration office in Atlanta told The Greenville News for a story Sunday.

Thursday, August 04, 2005

Chief Justice Toal encourages computerized case-management systems

Chief justices from around the union are gathered in Charleston to discuss changes in the legal system and law. Chief Justice Toal, who is hosting the conference, gave a talk yesterday touting South Carolina's technological advancements in the past five years in which a private Intranet site links magistrates and Circuit Court judges around the state, giving them quick access to things such as law research and forms to set bail.

Read about the conference here.

Governor Sanford Promises Legislation in Response to Kelo

Since the U.S. Supreme Court issued its Kelo decision on eminent domain, 21 states have begun work on strengthening their eminent domain statutes to protect private property. According to the governor, South Carolina will join this list.

Said Governor Sanford:

"Protecting property that folks have invested money, work and time into over the course of many years is key to allowing families to create wealth, and key to the notion of quality of life."

For those of you who missed it, this op-ed expresses my views on the Kelo decision.

Tuesday, August 02, 2005

John Roberts and the New Federalism

Over at the Independent Institute's website, I have an op-ed up on Judge Roberts and his support for the Supreme Court's federalism jurisprudence. Here is a taste:

Considering Roberts has served only two years as a federal judge, he has authored very few significant court decisions. However, the one opinion that provides a glimpse into attitude toward the New Federalism is Judge Roberts's dissenting opinion in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (2003). Rancho Viejo concerned an order of the federal Fish and Wildlife Service directing a developer to remove a fence from his property to accommodate the movements of arroyo toads. A panel of the D.C. Court of Appeals upheld the order under the Commerce Clause, but Judge Roberts urged that the entire Court rehear this issue.

Roberts's opinion indicated that the protection of a non-commercial, local toad was not "commerce" subject to federal regulation. The activity being regulated (i.e., the erection of a fence) on private property did not, in Judge Roberts's opinion, substantially affect interstate commerce. Judge Roberts described the panel's reasoning as "inconsistent with the Supreme Court's holdings in United States v. Lopez" and other New Federalism cases. He feared that the panel's broad approach would destroy any real limits on federal power under the Commerce Clause.

Monday, August 01, 2005

What not to wear to court has an interesting article up on dress requirements in South Carolina courtrooms. One of the best "what not to wear" stories came from Judge Paul M. Burch:

I did have a defendant come before me several years ago to plead guilty to a drug charge wearing a T-shirt with some kind of skull and bones symbol on it that said 'Dealer of Death,'" he said. "Obviously, that wasn't a good choice on his part. . . ."