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.