Friday, September 30, 2005

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.

Thursday, September 29, 2005

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.

Wednesday, September 28, 2005

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.

Monday, September 26, 2005

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.

Thursday, September 22, 2005

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)

Wednesday, September 21, 2005

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.

Tuesday, September 20, 2005

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.

Monday, September 19, 2005

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."

Thursday, September 15, 2005

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!

Wednesday, September 14, 2005

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.

Tuesday, September 13, 2005

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.

Monday, September 12, 2005

Friday, September 09, 2005

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.

Thursday, September 08, 2005

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.

Wednesday, September 07, 2005

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.

Tuesday, September 06, 2005

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).

Friday, September 02, 2005

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

According to

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.