Tuesday, May 24, 2005

Physician Appeal Dismissed: Must Exhaust Administrative Remedies

According to The State newspaper:

An appeal filed last month by West Columbia alternative-medicine physician James Shortt was dismissed Thursday, court papers show.

Shortt had been appealing his suspension last month by the state medical board.
But Administrative Law Judge John Geathers dismissed his appeal after determining Shortt failed to exhaust all options prior to bringing the case before the court.

The board cited Shortt for violations of medical practices and state law involving eight unidentified patients.

Though the petition does not name Shortt because of secrecy laws, the facts cited make it clear it is in reference to his case.

Friday, May 20, 2005

Fourth Circuit Upholds Landing Field Injunction

According to the AP:

The 4th U.S. Circuit Court of Appeals in Richmond, Va., issued the brief order Thursday that upheld the injunction by U.S. District Court Judge Terrence Boyle.

. . .

The Navy wanted the appeals court to overturn Boyle and allow it to continue buying land from willing sellers and doing other work while the lawsuit brought by counties and environmentalists continues.

The Navy wants the 33,000 acres near the Pocosin Lakes National Wildlife Refuge because there are few artificial lights on the rural landscape, simulating the nighttime darkness around an aircraft carrier at sea.

The opinion is not yet up on the court's web site. When it is, I will post.

Wednesday, May 18, 2005

Reminder on Error Preservation

In Cowburn v. Leventis, (Opinion No. 3990), released on May 16, the South Carolina Court of Appeals gives another reminder on just how important and tricky error preservation can be:

Cowburn argues the trial court failed to consider the affidavit from his expert, Thomas Mason, in resolving the motion for summary judgment, asserting the affidavit creates an issue of material fact as to the duties Fidelity owed to Cowburn. We find Cowburn did not preserve this issue for our review.

In order for an issue to be preserved for appellate review, with few exceptions, it must be raised and ruled upon by the trial judge. Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 511, 598 S.E.2d 712, 715 (2004). When a trial court makes a general ruling on an issue, but does not address the specific argument raised by a party, that party must make a Rule 59(e) motion asking the trial court to rule on the issue in order to preserve it for appeal. See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991).

Leventis and Fidelity objected at the summary judgment motion hearing to Mason’s affidavit on the grounds that it did not establish Mason as an expert, was not timely, was not notarized, and contained legal conclusions. Although the record includes discussions during the motion hearing concerning Mason’s affidavit and Cowburn’s assertions that it should be considered, the trial court never indicated whether it would consider it. In addition, the trial court did not specifically address Mason’s affidavit in its written order granting summary judgment. We find the trial court did not rule upon this issue, and thus, whether or not the court erred in failing to consider the affidavit is not preserved for appeal. See id.

Tuesday, May 17, 2005

Fourth Circuit Dismisses NAACP Suit

According to the AP:

The Fourth Circuit upheld the dismissal of a lawsuit that claimed York County, S.C., police and prosecutors tried to intimidate NAACP members by questioning them in their homes, following them in cars and keeping them from attending a criminal trial.

A three-judge panel of the 4th U.S. Circuit Court unanimously ruled Monday that the civil rights group's Western York County Branch was not entitled to an injunction because it failed to show that future violations of its constitutional rights are likely.

The court's opinion can be found here.

Dormant Commerce Clause Trumps 21st Amendment

The Supremes handed down their decision in Granholm v. Heald yesterday. At issue were state schemes that allowed in-state, but not out-of-state, wineries to make direct sales to consumers. The States and an intervening in-state wholesalers association responded that the direct shipment ban was a valid exercise of the states' power under the Twenty-first Amendment. At base, the Court held that the Twenty-first Amendment does not supersede other provisions of the Constitution and, in particular, does not displace the rule that States may not give a discriminatory preference to their own producers.

To me, the text of the Twenty-first Amendment is pretty clear that the statutory schemes at issue in Granholm are properly left to the states: "The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

As Justice Thomas noted in dissent:

The Twenty-first Amendment and the Webb-Kenyon Act took those policy choices away from judges and returned them to the States. Whatever the wisdom of that choice, the Court does this Nation no service by ignoring the textual commands of the Constitution and Acts of Congress. The Twenty-first Amendment and the Webb-Kenyon Act displaced the negative Commerce Clause as applied to regulation of liquor imports into a State. They require sustaining the constitutionality of Michigan's and New York's direct-shipment laws.

Justice Stevens also made very good points about original intent and the Twenty- First Amendment:

Indeed, the fact that the Twenty-first Amendment was the only Amendment in our history to have been ratified by the people in state conventions, rather than by state legislatures, provides further reason to give its terms their ordinary meaning. Because the New York and Michigan laws regulate the transportation or importation of intoxicating liquors for delivery or use therein, they are exempt from dormant Commerce Clause scrutiny.

I've only been through the opinion once, but at this point I believe that Thomas and Stevens make the better argument.