Friday, December 30, 2005

Judge Rules is S.C. School Funding Case

Judge Thomas W. Cooper, Jr. ruled Thursday that the state's system of funding education does not provide students in several rural school districts with the opportunity to receive a minimally adequate education because it does not sufficiently fund early childhood education. Judge Cooper also ruled that facilities in the eight rural districts are "safe and adequate" and that curriculum standards and the system of teacher certification are adequate.

If the ruling stands, the General Assembly will have to find a way to provide free preschool to at-risk students as young as three years old. However, the ruling does not require districts to fix dilapidated school buildings or raise teacher pay, as many had hoped.

From what I hear from the parties, an appeal is a certainty. A copy of Judge Cooper's Order can be found here.

The State Newspaper has this article.

The Charlotte Observer has this article.

Wednesday, December 28, 2005

Fourth Circuit issues opinion on effect of reservation of rights letter

In Twin City Fire Insurance Company v. Ben Arnold-Sunbelt Beverage, the Fourth Circuit considered whether, under South Carolina law, a reservation of rights letter automatically triggers a conflict of interest entitling the insured to reject counsel tendered by the insurance company and instead to choose and retain its own counsel and to have the insurance company pay for that counsel.

The panel agreed with the district court and rejected the notion that the reservation of rights letter issued in this case creates a per se conflict that must be remedied through the insured selecting counsel and having the insurance companies pay the legal fees.

State Black Caucus says judicial elections are unfair

According to an article in the Rock Hill Herald, the Legislative Black Caucus is protesting that South Carolina has seven black judges out of 112 total, even though at least 30 percent of the state's population is black. The Caucus is threatening a lawsuit over the matter.

All candidates for judgeships are screened by the 10-person Judicial Merit Selection Committee, made up of six lawmakers and four lay people appointed by lawmakers. Only three names are submitted to the legislature as a whole to run as judicial candidates. Many black leaders see having all qualified candidates on the ballot as a way to get more black candidates on the ballot.

Blacks also make up only about 5 percent of the state's lawyers. Current law school enrollment doesn't point toward any increase in the percentage of black lawyers. The University of South Carolina law school, for almost four decades the only law school in the state, has about 740 students, according to statistics released by the registrar's office. Only 47 of them are black and 27 are other races.

Balancing liberty and presidential authority

The Miami Herald has an interesting op-ed on the Fourth Circuit's recent Padilla opinion. The op-ed begins as follows:

The extraordinary rebuke issued by the U.S. Fourth Circuit Court of Appeals to the Bush administration last week in the case of "dirty bomber" Padilla may be a watershed in the debate over the presidential exercise of wartime powers. This has been a friendly venue for the administration on the issue of "enemy combatants," but it refused to endorse the twisted legal maneuvering over the Padilla detention. The implicit message is that the administration is running out of credible arguments to support an imperial view of the president's wartime powers.

Tuesday, December 27, 2005

S.C. Court of Appeals affirms summary judgment in legal malpractice case

In Doe v. Howe, the trial court affirmed summary judgment in a legal malpractice claim. Doe alleged he was sexually abused while attending the Porter-Gaud school in the 1970s. His attorney advised him there were problems with the statute of limitations but nonetheless arranged for a $88,000 settlement in May 2000. A few months later, in October 2000, a parent of another victim of sexual abuse at Porter-Gaud received jury verdicts against Porter-Gaud and the estates of two former officials of the school totaling $105 million dollars. After learning of the verdicts, Doe contacted his attorney the following month to inquire about the possibility of rescinding his settlement with Porter-Gaud. According to Doe, the attorney knew of no way to set aside the settlement, but nevertheless agreed to talk with his brother about the matter. Doe stated he never received an answer to his inquiry.

Doe sued the attorney for negligence and breach of fiduciary duty. The trial judge dismissed both the legal malpractice claim and the breach of fiduciary duty claim because he viewed the record as presenting no triable issue of fact regarding whether Doe would have recovered more by either trial or settlement than $88,000 if he had retained a different lawyer. The Court of Appeals agreed, but vacated the dismissal of the breach of fiduciary duty cause of action and remanded the matter to the trial judge for an order identifying the facts and accompanying legal analysis on which he relied to enable a meaningful appellate review.

S.C. Court of Appeals issues physician privileges opinion

In Levine v. Spartanburg Regional Services District, the court of appeals affirmed the trial court's order granting an injunction which required that the hospital could not terminate the privileges of anesthesiologist Levine until the merits of her case can be adjudicated.

Thursday, December 22, 2005

Fourth Circuit denies government's request to transfer Padilla

The Fourth Circuit denied a Bush administration request to transfer terrorism suspect Jose Padilla, a former Chicago gang member, from military to civilian law enforcement custody. The panel also refused the administration's request to vacate a September ruling that gave President Bush wide authority to detain ''enemy combatants'' indefinitely without charges on U.S. soil. According to the panel:

Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.

Georgetown Man with HIV gets 25 years for raping girls

The Georgetown Times has this story.

Wednesday, December 21, 2005

South Carolina filed motion to reconsider in Catawba video poker case

Judge Joseph Strickland ruled on December 13 that the Catawba Indian Nation had the right to offer the gambling game on its reservation about 10 miles south of Charlotte despite a statewide ban since 2000. In a motion to reconsider, Attorney General Henry McMaster argued that the 1993 land claim settlement between the Catawbas and the state and federal governments was not meant to allow the tribe to offer video poker.

The Charlotte Observer has this story.

Circuit Judge Reginald Lloyd to be the next U.S. attorney for South Carolina.

President Bush has nominated Circuit Judge Reginald Lloyd to be the next U.S. attorney for South Carolina. If approved by the U.S. Senate early next year, Lloyd would be the first black U.S. attorney in the state since Reconstruction.

The Charlotte Observer has this story.

Judge Lloyd was elected by the General Assembly as an at-large Circuit Court judge two years ago. Senator Lindsey Graham recommended Judge Lloyd for the job and says Lloyd has been a conservative judge. "He crosses all kinds of party lines and political lines," Graham said. Graham averred the Senate should take up Lloyd's nomination during or right after hearings on U.S. Supreme Court nominee Samuel Alito, which are scheduled for next month.

South Carolina Senator Jim DeMint has also praised Lloyd: "I think most Democrats, Republicans and Independents will agree that he's the right guy at the right time. The South Carolina judicial system will be losing one of its most talented members, and the state and nation will be gaining one of its most talented U.S. attorneys."

Judge Lloyd graduated from the University of South Carolina Law School in 1993. He worked in the state attorney general's office from 1995 to 1998 and was director of research and chief counsel to the state House Judiciary Committee.

The South Carolina Bar has this summary of Judge Lloyd's career. (scroll down to "From the Bench").

Monday, December 19, 2005

S.C. Supreme Court issues injunction opinion

In Breedlove v. Cramer, the Supreme Court reversed the trial court's denial of a temporary injunction. The Breedloves, demented and aged, were transferring assets to the Cramers. The Guardians for the Breedloves sought a preliminary injunction freezing the Cramers' Merrill Lynch account and any other accounts, assets, and personal property purchased or acquired with the $2 million obtained from the Breedloves. The trial court held that the Breedloves were required to use attachment to preserve the disputed assets until the disposition of the case. The Supreme Court held that this was not required in a equitable action.

Friday, December 16, 2005

Court of Appeals issues statutory employee opinion

In a decision filed December 12, 2005, the South Carolina Court of Appeals affirmed a trial court's finding that a pilot who provides transport services to a hospital on a contract basis is not a statutory employee of the hospital. As a result of the appellate court's holding, the pilot, who sued a hospital employee for gross negligence arising out of personal injuries, is not barred by the exclusive remedy of the Workers' Compensation Act from pursuing his claim. The appellate court rejected the hospital's argument that the pilot was a statutory employee of the hospital on the basis that although the ability to transport patients by air helps facilitate the hospital's treatment of critically injured patients, that fact alone does not make transportation an important or essential part of the hospital's business. The appellate court noted that less than 1% of the hospital's patients require air transportation and hospital's services do not cease when air transportation is not available. The appellate court also rejected the hospital's argument that the pilot was a borrowed servant because no evidence existed that the hospital exercises control over the methods and details of each flight.

(contributed by Sandi Wilson)

Thursday, December 15, 2005

S.C. Court of Appeals holds a citizen may resist excessive force to defend himself if arrested

In State v. Williams, Williams argued that the trial court erred in failing to instruct the jury that an individual being arrested is permitted to defend himself against excessive force by the arresting officer during a lawful arrest. The court of appeals agreed with Williams, holding:

After examining the holdings in other jurisdictions and our own jurisprudence, we conclude that an individual, under the appropriate circumstances, has the right to utilize the amount of resistance reasonably necessary to defend himself in the event excessive force is utilized incident to a lawful arrest. This should not be interpreted to mean anyone is entitled to resist a lawful arrest or that the arrest becomes unlawful for purposes of prosecuting the underlying offense. On the contrary, to be entitled to the requested instruction, the evidence must clearly show that the accused complied fully with all requirements placed upon citizens subject to a lawful arrest and resisted only to the extent necessary to protect himself from serious physical harm. The facts of this case warrant a jury charge to that effect.

S.C. Court of appeals issues decision on validity of arbitration agreement

In Aiken v. World Finance, World Finance argued that the circuit court erred in denying their motion to compel arbitration. According to World Finance, once the court determined that an arbitration agreement existed between the parties, the court's "decisional function" was completed and any decisions regarding the validity of the agreement and the arbitrability of Aiken's claims were to be decided by an arbitrator. The court of appeals refused to decide this issue because World Finance did not raise this precise argument in their motion to compel arbitration, the circuit court did not address this issue in its order, and World Finance did not file a motion pursuant to Rule 59 of the South Carolina Rules of Civil Procedure to challenge this omission.

The court of appeals upheld the decision to deny arbitration because no "significant relationship" existed between Aiken's tort claims and the loan agreement which was subject to arbitration.

Monday, December 12, 2005

S.C. Supreme Court adopts filed rate doctrine

In Edge v. State Farm, the state Supreme Court adopted the filed rate doctrine. The filed rate doctrine stands for the proposition that because an administrative agency is vested with the authority to determine what rate is just and reasonable, courts should not adjudicate what a reasonable rate might be in a collateral lawsuit. According to the court:

We find the policy reasons behind the filed rate doctrine persuasive. The filed rate doctrine preserves the stability, uniformity, and finality inherent in rates filed with the regulatory agency and what has been determined to be a reasonable rate by that agency. Cullum v. Seagull Mid-South, Inc., 907 S.W.2d 741, 745 (Ark. 1995). Accordingly, we hereby adopt the filed rate doctrine and, furthermore, we find it applicable in the insurance industry. Although not applicable in the present case, we also recognize there are several exceptions as set out above which may prevent its application.

Officials urge creation of South Carolina Drug Court

According to this article in The State, many officials urge creation of a statewide drug court to battle methamphetamine use in South Carolina.

Friday, December 09, 2005

Fourth Circuit issues standing opinion

In Emery v. Roanoke City School Board, the Fourth Circuit held that parents in an IDEA case had no standing to sue for the expenses incurred when a school failed to provide the child with an appropriate education because the parents incurred no out of pocket expenses.

Typically, when a school district's educational choices for a disabled child violate the IDEA, the child's parents can unilaterally place him in an appropriate educational setting and seek reimbursement from the district. In this case, the parents paid no money for the educational expenses incurred during the 1992-1993 school year because the father's medical insurance provided by his employer paid the expenses. Hence there was no standing:

Plaintiff has failed to show how awarding him this amount would be anything other than a windfall. Plaintiff was in no way shortchanged by the use of proceeds from his father's medical insurance policy to pay Cumberland's bills. Plaintiff has not, for example, shown that he failed to obtain appropriate care as a result of any diminution in his father’s lifetime insurance benefits. And his current insurance coverage is distinct from the medical insurance used to pay Cumberland. Any payment to Cumberland under his father's policy has not lessened the benefits plaintiff enjoys under his current plan.

Fourth Circuit issues effective assistance of counsel opinion

In Frazer v. South Carolina, the state appealed the district court's order granting relief on Frank Frazer's petition for a writ of habeas corpus. The court granted relief solely as to Frazer's claim that his attorney failed to consult with him regarding a direct appeal following his sentencing on state trafficking charges in 1994, and that as a result he lost his right to

Although the South Carolina appellate courts that reviewed this claim concluded that the Sixth Amendment did not require Frazer's counsel to consult with him regarding an appeal, the Fourth Circuit affirmed the district court's conclusion that the state court interpretations of the law were unreasonable under Strickland v. Washington, 464 U.S. 668 (1984), and its progeny.

Thursday, December 08, 2005

U.S. Supreme Court decides student loan case: bad news for those with delinquent loans

Lockhart v. United States, concerned the government's withholding of social security payments as an offset to amounts owed on Lockhart's student loans. Lockhart had failed to repay federally reinsured student loans that he had incurred between 1984 and 1989 under the Guaranteed Student Loan Program. These loans were eventually reassigned to the Department of Education, which certified the debt to the Department of the Treasury through the Treasury Offset Program. In 2002, the Government began withholdings portion of Lockhart's Social Security payments to offset his debt, some of which was more than 10 years delinquent. Lockhart sued in Federal District Court, alleging that under the Debt Collection Act 10-year statute of limitations, the offset was time barred.

The crux of the case was that a 1996 federal law included Social Security benefits for the first time among the benefits that the government can attach for the repayment of debts. The original Social Security Act had barred any attachment of Social Security payments. The Court held that a 1991 law eliminated the 10-year time limit for collecting student loan obligations and therefore the social security payments could be withheld.

Wednesday, December 07, 2005

U.S. Supreme Court likely to rule for the government in Solomon Amendment case

An article in the LA Times starts as follows:

The Supreme Court justices signaled Tuesday that they would uphold the military's right to recruit on college campuses and at law schools, despite its policy of excluding openly gay people from its ranks. The justices gave a thoroughly skeptical hearing to the position of some law faculties that they have a free-speech right to bar military recruiters, a claim that was upheld by a lower court.

SCOTUS Blog has this account of the argument.

The briefs of the parties can be found here.

Tuesday, December 06, 2005

Chief Justice Toal on the judicial system

The State newspaper has this article on the Chief Justice's speech yesterday.

New seat belt law gives S.C. cops more authority

According to this report from the AP:

Law enforcement officials around South Carolina are preparing for the new statewide seat belt law that goes into effect Friday.

The new law is a primary one, which means law enforcement officers may pull a vehicle over if they suspect anyone inside is not wearing a seat belt. Under South Carolina's current law, which is secondary, officers may issue a ticket for a driver or occupant not wearing a seat belt only if they have stopped the vehicle for another violation.

But the new law also prohibits officers from setting up checkpoints specifically to check seat belt or from writing tickets for seat belt infractions at other public safety checkpoints.

In the criminal law context this means that police have yet another "valid reason" to pull over a vehicle if they have a hunch some other criminal activity is afoot.

Monday, December 05, 2005

Court of Appeals reverses summary judgment in attorney malpractice case

In Smith v. Hastie, the court of appeals reverses a grant of summary judgment for the attorney in a malpractice action. The case concerned the attorney setting up a partnership for husband and wife, and the results of the partnership on the equitable distribution. The wife alleged that at no time during the meetings did the attorney advise her about the potential loss of her right to claim the assets in the partnership or the income from these assets in the event of a divorce. In fact, she specifically asked the attorney on two occasions how she would be affected in case of a divorce and the attorney told her both times she would be just fine.

Based on these facts and a supporting affidavit from an expert, the court held that the trial court erred in granting the attorney summary judgment on the negligence claim.

Thursday, December 01, 2005

Fourth Circuit issues Title VII opinion on exhaustion of administrative remedies

In CHACKO v. PATUXENT INSTITUTION, the Fourth Circuit considered whether the plaintiff exhausted his administrative remedies, and thus properly brought suit in federal district court, under Title VII of the Civil Rights Act of 1964. Prior to bringing suit, a plaintiff must file an administrative charge with the Equal Employment Opportunity Commission (EEOC). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit."

According to the Court, the plaintiff failed to exhaust his administrative remedies because his administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit. According to the court, plaintiff's "centerpiece" at trial was that coworkers continually made derogatory national-origin remarks to him over the course of his twenty-year career, and that supervisors did not discipline these coworkers, laughed at their comments, and may have joined them. The administrative charges, however, alleged specific episodes of harassment. None of them mentioned coworker harassment or national-origin epithets.

Because these claims were not raised in the EEOC charge, plaintiff failed to exhaust administrative remedies.

U.S. Supreme Court hears first abortion case in 5 years

According to

During oral arguments in Ayotte v. Planned Parenthood of Northern New England, several justices criticized the law because it fails to spell out an exception that would allow doctors to perform abortions quickly in medical emergencies without having to contact parents or a judge.

Abortion rights supporters emerged from the Court cautiously optimistic about the outcome. "The chances that the New Hampshire law will come out of this intact seem very small," said Steve Shapiro, legal director of the American Civil Liberties Union, which represented challengers to the New Hampshire law.