Friday, December 29, 2006

South Carolina County Approves Revoking Licenses to Businesses That Hire Illegals

From Fox News:

Beaufort County Council unanimously approved the local law, dubbed the "Lawful Employment Ordinance," 9-0, following a public hearing. It is set to take effect Jan. 1, 2008.

Under the ordinance, people who apply for a county business license must sign a form verifying, under penalty of perjury, they do not knowingly employ or plan to hire an illegal immigrant. Licensed companies would be subject to county audits of their employees' documentation.

Thursday, December 28, 2006

Fourth Circuit holds Bankruptcy Code's anti-discrimination provision does not apply to home loan guaranty entitlements

In AYES v. U. S. DEP'T OF VETERANS AFFAIRS, Ayes and others filed a class action complaint against the VA, alleging that the VA violated 11 U.S.C.A. 525, the anti-discrimination provisionof thee Bankruptcy Code, by refusing to fully restore veteran home-loan guaranty entitlements to the class solely because of their previous discharges in bankruptcy. The district court granted the VA's motion to dismiss and the Fourth Circuit affirmed.

The panel held that Section 525(a) prohibits a governmental unit from denying a "license, permit, charter, franchise, or other similar grant"solely because an individual has filed for or received a discharge in bankruptcy, but that the veteran guaranty entitlement was not a "license," "permit," "charter,"or "franchise."

"West Virginia" defense does not fly in S.C. Courts

In State v. Claypoole, Theresa Claypoole was convicted of contributing to the delinquency of a minor and accessory before the fact to criminal sexual conduct with a minor because she permitted her 49 year-old husband to have sex with her 13 year-old daughter. Claypoole raised the "West Virginia defense" when arguing that the trial court should have granted her motion for a directed verdict:

Regarding the propriety of Claypoole's forty-nine-year-old husband sleeping with her thirteen-year-old daughter, Claypoole stated she did not know why everyone made such a big deal out of them having sex because in West Virginia, where she was raised, the older men often taught young girls about sex to prepare them for their wedding nights.

The Court of Appeals affirmed the conviction. (Hat tip to Langdon Cheves)

Wednesday, December 27, 2006

Fourth Circuit upholds dismissal under forum-selection clause

In SUCAMPO PHARMACEUTICALS v. ASTELLAS PHARMA, the Fourth Circuit considered the dismissal of an action based on the forum selection clause which called for disputes to be litigated in Japan. The clause appeared in the Basic License Agreement and provided: "any dispute in relation to this agreement or any agreement incidental hereto" be brought in Japan.

Sucampo argued that the dispute was not governed by the clause because the dispute arose under a Safety Agreement, which was not incidental to the Amended Basic License Agreement containing the forum selection clause. The Fourth Circuit rejected this argument under the general principles of contract interpretation. The Safety Agreement explicitly noted that it was executed "under the Basic Agreement," with a term concurrent with the Basic Agreement. The Safety Agreement had no independent validity a part from the continued validity of the Basic Agreement. Moreover, the panel noted that there was no reasonable reading of the word "incidental" in the forum-selection clause that would exclude the Safety Agreement from its coverage. The dismissal was affirmed

Friday, December 22, 2006

S.C. Supreme Court holds that Crawford v. Washington does not apply to a probation revocation proceeding

The United States Supreme Court has banned out-of-court testimonial statements from criminal trials unless the witness is unavailable to testify, and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington. In State v. Pauling, Pauling argued that the State violated Crawford v. Washington at his probation revocation hearing when it improperly relied on the arrest warrants and affidavits of police officers and investigators related to charges on which he had yet to be tried.

Concluding that a revocation proceeding is not a criminal prosecution, the Court of Appeals held that Sixth Amendment rights forming the basis of Crawford v. Washington are not implicated. A person convicted of a crime is still restrained within the confines of his probation, he does not enjoy the same unfettered constitutional privileges available to those not so confined.

Thursday, December 21, 2006

South Carolina Common Sense Consumption Act

The General Assembly is currently working on SC HB 3046: Common Sense Consumption Act. At base, this bill is meant to stop the lawsuits based on folks eating Mickey D's and getting fat. According to the preamble:

Act to amend provide that a manufacturer, packer, distributor, carrier, holder, marketer, seller, or an association of one or more of these entities is not subject to civil liability in an action based on a person's purchase or consumption of food or nonalcoholic beverages when liability is based on weight gain, obesity, or a health condition associated with weight gain or obesity resulting from the person's long-term consumption of food or nonalcoholic beverages

Wednesday, December 20, 2006

S.C. Supreme Court affirms summary judgment in med mal case

In Jones v. Day, a mother died after child birth and her estate sued the hospital for medical malpractice. The estate argued that Defendants departed from the standard of medical care in failing to provide post-operative medical attention to the mother after she complained of severe abdominal pain. Summary judgment was granted because there was no admissible evidence suggesting that anyone responsible for the mother's care and treatment, physician or otherwise, was made aware of her abdominal pain and injuries. Affidavits and deposition testimony failed to establish that the mother complained to any hospital staff about abdominal pain.

Tuesday, December 19, 2006

Fourth Circuit issues sentencing guidelines opinion

In UNITED STATES v. GUYON, the Fourth Circuit considered a 2004 sentencing wherein the District Court sentenced Guyon to 180 months when the then mandatory Federal Sentencing Guidelines established a sentencing range of 140 to 175 months and permitted the district court to deviate from this range only if it found facts justifying a departure. Judicial finding of fact persuaded the District Court that an upward departure was appropriate. Guyon appealed, challenging his sentence under United States v. Booker, 543 U.S. 220 (2005).

The Fourth Circuit noted that the District Court could not have sentenced Guyon above 175 months without making the forbidden factual finding. Hence, but for the error, Guyon would have received a shorter sentence. The Court vacated and remanded for resentencing.

Monday, December 18, 2006

Washington Post says that conservatives' grip on Fourth Circuit is in danger

According to the article:

A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation's most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say.

Fourth Circuit holds Anderson School District Five violated First Amendment with fee-waiver rules regarding use of school property

In CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE, he Child Evangelism Fellowship of South Carolina ("CEF") challenged policies under which it was denied a fee waiver for religious club meetings that it sought to hold in the facilities of Anderson School District Five. CEF argued that the school district violated the First Amendment by permitting school officials to waive fees "as determined to be in the district's best interest." The district court concluded that this language was vague enough to allow school administrators to violate the First Amendment by treating speakers differently based upon their views, but found no constitutional problem because it concluded that the school district had not engaged in viewpoint discrimination.

The Fourth Circuit reversed, holding that the fee-waiver rules cannot be squared with the prohibition on unfettered discretion so essential to viewpoint neutrality under the First Amendment. The fee-waiver rules authorized administrators to waive usage fees "as determined to be in the district's best interest"--conveying, by its terms, an apparent carte blanche.

Friday, December 15, 2006

Lawyer Provided Excellent Defense Despite Sleeping During Trial, Says Federal Judge


Even though defense attorney Robert Koppelman snoozed on occasion during the racketeering trial of an Albanian gang member, he managed to provide effective assistance of counsel under the Sixth Amendment, according to a federal judge.

In fact, Koppelman did such an excellent job defending Ljusa Nuculovic, despite falling asleep several times during the 2005 trial, that Southern District of New York Judge Denise Cote felt Nuculovic was lucky to have him.

I can't wait till my reputation is such that I can sleep in court and my clients are lucky to have me!

S.C. Supreme Court issues respondeat superior opinion

In Armstrong v. Food Lion, Inc., three employees of Food Lion attacked Armstrong in the store and cut him with sharp objects. Armstrong sued Food Lion for torts of its employees. The trial court granted a directed verdict in favor of Food Lion and the Supreme Court affirmed. The Court held that the trial court appropriately granted a directed verdict because Armstrong failed to produce any evidence that the Food Lion employees were acting within the scope of their employment or in furtherance of Food Lion's business when they attacked Armstrong. They were acting to effect an independent purpose of their own.

Monday, December 11, 2006

Frat boys in Borat find no solace in court

From Yahoo news:

The South Carolina frat boys who filed suit over their depiction in Borat are just going to have to accept their place in history, because their scene in the hit film is here to stay.

After questioning just how inebriated the two plaintiffs were when they put their less-than-best face forward, a Los Angeles judge refused to order that 20th Century Fox excise their part from future theatrical and DVD copies of Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan.

Law firm rates on the rise reports that rates are going up again!

Light Blogging this week

I'll be out of town until Friday for depositions. Lots of updates when I return.

Friday, December 08, 2006

E-Discovery Rule Amendments

For those of you scurrying to understand and comply with the new E-Discovery Amendments to the Federal Rules, The Pocket Part has a nice overview here.

SCOTUS arguments on racial balancing in K-12 schools

SCOTUS Blog has a great post up on the arguments in Parents v. Seattle School District No. 1, in which the Court considers whether the goal of racial diversity in secondary and primary schools justifies the use of race in assigning students.

A good summary of the case (and links to the briefs) can be found here.

Thursday, December 07, 2006

SCOTUS holds that misdemeanor drug conviction cannot be treated as felony for deportation purposes

In Lopez v. Gonzales, The Supreme Court considered whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." 18 U. S. C. 924(c)(2). Despite this federal misdemeanor treatment of the conduct, the Government argued that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. Had the Government's position carried the day, a noncitizen would be subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.

In the 8-to-1 decision, the High Court held that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that federal law.

Wednesday, December 06, 2006

Fourth Circuit strikes down sentencing provision of child porn statute

Congress enacted 18 U.S.C. 3553(b)(2) as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act"). The PROTECT Act included certain mandatory sentencing provisions applicable to child and sexual offenses, including possession of child pornography. Those mandatory sentencing provisions are codified at 18 U.S.C. 3553(b)(2). In United States v. Hecht, the Fourth Circuit held that section 3553(b)(2) violates the rationale of Booker in the same way that section 3553(b)(1) violated the Sixth Amendment in Booker and that the section must be replaced with an advisory guidelines regime under which sentences are reviewed for reasonableness. The sentence was vacated and the Court remanded for resentencing

Fourth Circuit upholds conviction of SC pain management physician

In United States v. McIver, the Fourth Circuit ventured into the world of pain management. Dr. Ronald A. McIver, a pain management physician, was convicted for various counts of unlawful distribution of a controlled substance, unlawful distribution of a controlled substance resulting in death, and conspiracy to unlawfully distribute a controlled substance. Formerly he operated a medical clinic in Greenwood, South Carolina that specialized in treating chronic pain. During its investigation, the DEA discovered that Dr. McIver had prescribed massive quantities of oxycodone, Dilaudid, OxyContin, methadone, and morphine to his patients. Many of his patients included admitted drug addicts who traveled significant distances to see him, appeared without referrals, paid in cash, and sought specific drugs which were prescribed for them based on little or no physical examination.

On appeal, Dr. McIver raised several issues. The main issue argued was that the district court erred in telling the jury to consider the extent to which "any violation of professional norms you find to have been committed by the defendant interfered with his treatment of his patients and contributed to an over prescription and/or excessive dispensation of controlled substances."

Reading the charge as a whole, the Fourth Circuit rejected Dr. McIver's argument. The government had to prove that Dr. McIver used "his authority to prescribe controlled substances . . . not for treatment of a patient, but for the purpose of assisting another in the maintenance of a drug habit or" some other illegitimate purposes, such as his own "personal profit." The government further had to prove that the physician acted outside the scope of professional practice. Considering the proof requirements on the government, the Fourth Circuit approved the professional norms language and affirmed the conviction.

Tuesday, December 05, 2006

Charleston law school gains accreditation

Congrats to the Charleston School of Law.

(Hat tip to Laurinline).

Fourth Circuit Vacancies

The Richmond Times Dispatch has a good article on the Fourth Circuit's vacant seats. Nice background information on why we have so many open seats.

Above the Law also has a solid post up on the current state of the Fourth Circuit and possible replacements for Wilkins.

S.C. Supreme Court vacates sentence because of conditional guilty pleas

In In re Lee, a juvenile pled guilty to disturbing the schools (which is prohibited by statute) and conditioned the plea on his right to appeal the issue of whether the statute is unconstitutional. The Supreme Court held a conditional plea may not be accepted and vacated the sentence. Under South Carolina law, if an accused attempts to attach any condition or qualification to a plea, the trial court should direct a plea of not guilty.

Sunday, December 03, 2006

Who will be South Carolina's next federal judge?

In addition to Judge Henry Floyd and U.S. Attorney Reggie Lloyd I have also heard discussion about the following:

Steve Matthews

Bill Coates

Both would make fine judges.

Friday, December 01, 2006

Review of Reclaiming the American Revolution

Many thanks to Soraya Rudofsky, editor of the last edition of the Harvard Law Review, for reviewing my book Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, in the most recent issue of Engage.

The review may be found here.

Possible Candidate to Take Judge Wilkins' Seat

It is very early in the process, with Chief Judge Wilkins just announcing that he will take senior status. However, I have heard that Judge Henry Floyd (federal district judge from SC) is a possibility. I have also heard that Reggie Lloyd, the United States Attorney for the District of South Carolina, who is supposedly close to Senator Graham might be in the running too.

Thursday, November 30, 2006

Chief Judge William Wilkins Takes Senior Status

My sources report that today Chief Judge William Wilkins sent a letter to President Bush announcing that he will take senior status effective July 1, 2007. Judge Karen Williams will become the next Chief Judge of the Fourth Circuit.

This could mark a major change in the circuit court that many observers regard as the most conservative. Right now, the Fourth Circuit is divided as follows:

Conservative: Chief Judge William W. Wilkins, Judge H. Emory Widener, Jr., Judge J. Harvie Wilkinson III, Judge Paul V. Niemeyer, Judge Karen J. Williams, Judge Dennis W. Shedd.

Moderate: Judge William B. Traxler, Jr. (leans right), Judge Allyson K. Duncan (leans left)

Liberal: Judge M. Blane Michael, Judge Diana Gribbon Motz, Judge Robert B. King, Judge Roger L. Gregory.

Labels are difficult, depending on the issue. For example, with "tough on crime" issues, one could easily put Judges King and Traxler (both former prosecutors) with the conservative judges. And Nixon appointee Judge Emory Widener is known to march to the beat of his own drummer, especially in the last few years. But, the above is about the best we can do as a general matter.

With Wilkins stepping down, the core conservatives on the Fourth Circuit are left with 4 solid votes.

Beginning July 1, 2007, there will be five vacancies on the Fourth Circuit. Depending on how those seats are filled, the Fourth Circuit could be very different in the years to come.

SCOTUS hears arguments on climate change

Yesterday the Supreme Court heard arguments on whether the EPA must regulate carbon dioxide emissions. SCOTUS Blog has this summary of the case.

CNN has this news story.

And Wikipedia has a very good summary of the legal issues here.

The case will likely turn on standing and will likely be the most important case of the term.

Wednesday, November 29, 2006

S.C. Supreme Court reverses PCR judge's grant of a new trial

In Bennett v. State, the PCR court granted Bennett a new trial based on ineffective assistance of counsel. Bennettt had pled guilty to first degree burglary on advice of his appointed public defender, who he alleged was unprepared for trial. He was sentenced to 18 years in prison. Prior to pleading, the public defender informed him he could get life if he went to trial and informed Bennett that a deal with the solicitor's office would likely result in 15 years. After pleading guilty, Bennett did not file an appeal. The PCR court found: (1) respondent had not knowingly and intelligently waived his right to a direct appeal; and (2) counsel was ineffective.

The Supreme Court reversed. The Court held that both the plea transcript and respondent's testimony at the PCR hearing clearly indicated that counsel did consult with respondent and advised him that he should enter a guilty plea. Counsel advised respondent to plead guilty based, at least in part, on the likelihood of what counsel believed the sentence would be. Counsel's advice that respondent would have gotten a life sentence was not technically incorrect because life is the maximum sentence for first degree burglary.

The Court further found that because any trial would essentially be respondent's word against his ex-girl friend's, there could be no claim that counsel should have further investigated the case to discover other evidence or witnesses. Counsel testified that he was prepared for the trial.

Tuesday, November 28, 2006

South Carolina Supreme Court affirms punitive damages award 6.82 times greater than actual damages

James v. Horace Mann Ins. Co., was a bad faith action arising out of a dog bite. James' dog bit Geiger, requiring Geiger to suffer injuries. When James submitted the claim to his insurance company, the adjuster erroneously told him that under South Carolina law negligence must be proven before liability payments for animal bites could be paid. This was incorrect because SC has adopted strict liability for dog bites. In the Geiger trial, a jury returned a verdict against James and awarded Geiger $50,500 in damages. the Insurance Company paid $25,000 of the judgment and James paid the remaining $25,500.

In the bad faith action, the jury awarded James $146,600 actual damages and $1,000,000 punitive damages. The South Carolina Supreme Court affirmed. The Court approved both the Gamble review and the Gore review of punitive damages. Key to affirming the award was the reprehensibility of the insurance company's conduct. The Adjuster repeatedly falsely represented the applicable law from the time he was assigned the claim, through Geiger's action. There was also evidence in the record that the Insurance Company denied the claim based on this false misrepresentation and that Geiger sued James based on this misrepresentation.

Monday, November 27, 2006

Changes in the Federal Rules of Appellate Procedure

Howard Bashman has a nice piece up on upcoming changes in FRAP. Here is a taste:

On Dec. 1, 2006, two amendments to the Federal Rules of Appellate Procedure will officially take effect.

The first amendment adds Federal Rule of Appellate Procedure 32.1, which will require all federal appellate courts to allow citation to their own unpublished and non-precedential opinions issued on or after Jan. 1, 2007. The second amendment, which affects Federal Rule of Appellate Procedure 25(a)(2)(D), will authorize federal appellate courts to require electronic filing.

The Real World According to Summer Associates has up an interesting article on summer associates and exactly what they are looking for in a law firm. Quality of life seems to rate high:

There's also a generational difference. These aspiring lawyers want to have a life, too. "They're really looking for a balance -- they're not interested in the churn-and-burn," Gotch says. Summers want to know about alternative work arrangements, such as part-time work and telecommuting, and the firm's family-friendliness, including child care facilities and paternity leaves. "Work-life balance is not some faddish buzzword, but a pending crisis that will, eventually, affect your firm's prosperity and longevity," warned a clerk at Cadwalader, Wickersham & Taft.

Wednesday, November 22, 2006

Fourth Circuit issues Black Lung Benefits Opinion

In Perry v. Mynu Coal, Inc., the Fourth Circuit considered a claim for survivorship benefits under the Black Lung Act. The Court held that the Review Board erred by ignoring testimony that established an opacity of sufficient size in the lung that creates a conclusive presumption that complicated pneumoconiosis caused the miner's death. Hence, the panel vacated the Benefits Review Board's order denying benefits and remanded to the Board to enter an appropriate order awarding benefits.

Judge Williams dissented. Although she agreed that the decision was not supported by substantial evidence, she would have held that "it is for the agency, and the agency alone, to properly examine all the evidence in order to make the initial determination of whether the irrebuttable presumption should be triggered in favor of Perry. "

Tuesday, November 21, 2006

S.C. Supreme Court issues opinion on excited utterances

In State v. Davis, the trial court admitted a hearsay statement from witness Hill that the shotgun Davis had offered to sell to Hicks had been used to murder the victim. The Court of Appeals affirmed the admission of the statement, but the Supreme Court reversed. According to the Court, no evidence was elicited by the State that Hill was still under the stress or excitement of the shooting. Therefore, the State did not meet its burden of establishing a foundation for the excited utterance. The Court also held that the evidence in the record did not support the conclusion that Hill had witnessed the shooting. Hence, the hearsay statement should have been excluded.

Monday, November 20, 2006

Fourth Circuit issues opinion on spam e-mails

In OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC, the Fourth Circuit considered an alleged violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act"). At base, Mummagraphics received cruise deal e-mails from Omega and Omega brought suit over the spamming under Federal and state law. The Fourth Circuit held that the CAN-SPAM Act preempts Mummagraphics' claims under Oklahoma's statutes and that Mummagraphics failed to allege the material inaccuracies or a pattern of failures to conform to opt-out requirements that is necessary to establish liability under the CAN-SPAM Act.

Tuesday, November 14, 2006

South Carolina Supreme Court holds that one assumes the risk of being hit by a puck when attending hockey games

In Hurst v. East Coast Hockey League, the circuit court granted summary judgment in favor of defendants when Hurst sued after being struck by a puck at a hockey game. The Supreme Court affirmed, holding that under the doctrine of implied primary assumption of risk, defendants' duty of care did not encompass the risk involved. The risk of a hockey spectator being struck by a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey.

Monday, November 13, 2006

Humiliated South Carolina Frat Boys Sue Movie Studio Over Drunken Appearance in 'Borat'

I've not seen Borat yet, but I hear it is a hoot. Anyway, a couple of USC frat boys are upset because of their appearance in the movie and are suing the producers--even though they signed releases. Essentially they argue they were too drunk to know what they were signing.

Thursday, November 09, 2006

Fourth Circuit issues non-mutual offensive collateral estoppel opinion

In Collins v. Pond Creek Mining Co., the Fourth Circuit considered non-mutual offensive collateral estoppel in a case where a widow sought Black Lung survivor benefits. Mrs. Collins sought to rely on the 1988 ALJ Decision to establish that Mr. Collins developed pneumoconiosis as a result of his thirty-six years in the coal mines. The panel noted that the issue of whether Mr. Collins developed and suffered from pneumoconiosisas a result of his work in the mines was actually determined in the 1988 proceeding, the determination was critical and necessary to the 1988 ALJ Decision, absent a finding of pneumoconiosis Mr. Collins could not have been awarded black lung benefits under the Act in 1988, the 1988 ALJ Decision is was valid, and Pond Creek had a full and fair opportunity to litigate the issue.

The only issue was whether ruling was not entitled to preclusive effect under the doctrine of collateral estoppel because of a change in the law in Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000) and thus the issue of whether Mr. Collins had pneumoconiosis was not identical to the one previously litigated. In Compton, the Fourth Circuit invalidated the BRB's practice of allowing ALJs to find the existence of pneumoconiosis by looking exclusively at evidence within one of 20 C.F.R. 718.202(a)'s four subsections, while ignoring contrary evidence belonging to one of the other three subsections. The Fourth Circuit held that the preponderance of the evidence standard was used in 1988 and is still the standard today in establishing entitlement to Black Lung benefits. Thus, the Court's ruling in Compton did not prevent the use on non-mutual offensive collateral estoppel. The widow was entitled to benefits.

Wednesday, November 08, 2006

S.C. Supreme Court issues new Appellate Court Rule permitting admission of foreign attorneys

Pursuant to Article V, section 4, of the South Carolina Constitution, the Court amended the South Carolina Appellate Court Rules by adding a new rule addressing the admission of foreign attorneys as Foreign Legal Consultants. The language of this new rule can be found here.

Tuesday, November 07, 2006

S.C. Supreme Court upholds statute prohibiting disruption of the schools

Under S.C. Code Ann. Section 16-17-420 "It shall be unlawful: (1) For any person wilfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon . . . ." In In Re Amir X. S., a student challenged the statute as overbroad and vague. Here is a description of just what the little darling allegedly did to violate the statute:

Appellant's teacher testified to the family court that for a period of over two hours, Appellant behaved in a way that was wilfully disruptive and unnecessary. Appellant paced about the classroom and refused to remain in his desk; cursed to his teacher and other students; and harassed one student with comments about the student's mother. For over two hours, Appellant's teacher patiently attempted to reason with him regarding his classroom behavior, to no avail. Left with no other choice but to remove Appellant from the classroom so that she and the other students could focus on their educational objectives, the teacher asked another staff member to escort Appellant from the room. Appellant, however, did not stop there. Appellant began yelling and cursing, swung a punch at his teacher as he left the classroom, and continued his tirade as he was escorted down the hall.

Just another day in the public schools. The Supreme Court rejected the overbreadth argument because, in the Court's view, First Amendment rights of expression are not impermissibly curtailed--only disruption of the public schools. As for the vagueness challenge, the Court held that the child did not have standing because his conduct fell within the narrowest part of the statute.

Monday, November 06, 2006

Big changes in the Fourth Circuit are upcoming

The Fourth Circuit is the most conservative in the nation, but maybe not for much longer. Check out this post at Southern Appeal.

Friday, November 03, 2006

Latham and Watkins is the pick this year for SCOTUS clerks

Here is an interesting article about SCOTUS clerks and their choices of firms.

Thursday, November 02, 2006

Victory for tobacco companies in DC Circuit


A federal appeals court has blocked a landmark judgment against the tobacco industry, allowing the companies to continue selling "light" and "low tar" cigarettes until their appeals can be reviewed.

The decision by the U.S. Court of Appeals for the D.C. Circuit also allows the companies to continue for now the advertising campaigns that a federal judge in August ruled were misleading.

Wednesday, November 01, 2006

S.C. to Raise Minimum Auto Limits in 2007

Starting Jan. 1, minimum coverage will go to $25,000 of bodily injury per person in a wreck, up from $15,000; $50,000 of bodily injury per accident, up from $30,000; and, $25,000 of property damage coverage, up from $10,000.

Insurance Journal has this article.

Tuesday, October 31, 2006

S.C. Court of Appeals issues right to counsel opinion in sex offender case

In State v. Roberson, Roberson was arrested for failing to register as a sex offender pursuant to sections 23-3-460 and 23-3-470 of the South Carolina Code. Roberson was released on bond the day after his arrest. The terms of the bond required Roberson to appear for roll call at the term of general sessions court in Dorchester County beginning on November 29, 1999. By signing the bond, Roberson acknowledged that he would be tried in his absence if he failed to appear in court. He did not appear in trial. He was tried in abstentia and convicted. Roberson eventually appeared and asked for a new trial, which was denied.

The Court of Appeals reversed, holding that Roberson's failure to appear at trial did not constitute an affirmative waiver of his right to counsel. The Court found it significant that Roberson was never advised of proceeding without representation on the charge.

Monday, October 30, 2006

Property tax amendment will be key issue in November

South Carolina voters will have the chance when they go to the polls Nov. 7 to cap how quickly their homes' tax value grows.

Voters can choose whether to limit the maximum increase in a home's tax value-- known as the assessment-- to 15 percent every five years.

This ballot question will read as follows:

Must Article III and Article X of the Constitution of this State be amended to authorize the General Assembly to establish the method of valuation for real property based on limits to increases in taxable value, adjusted for improvements and losses, of no more than fifteen percent over a five-year period, unless an assessable transfer of interest occurs; to provide that for purposes of calculating the limit on bonded indebtedness of political subdivisions and school districts, the assessed values of all taxable property within a political subdivision or school district shall not be lower than the assessed values for 2006; and to provide that the General Assembly, by general law and not through local legislation pertaining to a single county or other political subdivision, shall provide for the terms, conditions, and procedures to implement the above provisions?

Fourth Circuit decides ownership of Civil War-era papers

In Wilcox v. Stroup, the Fourth Circuit considered the ownership of papers from the administrations of two governors of South Carolina during the Civil War. Thomas Law Willcox sued in United States Bankruptcy Court for a declaratory judgment that the papers were part of his estate. Defendant South Carolina countered that the papers were public property. The bankruptcy court held for the State, but the the district court reversed. The Fourth Circuit affirmed that the papers belong to Wilcox because the long possession of the papers by the Willcox family creates a presumption of ownership in their favor and the State adduced insufficient evidence to defeat this presumption.

Applying South Carolina law, the panel noted that it is well established that, absent evidence of superior title, "[t]he law ever presumes in favor of possession, for possession alone is prima facie evidence of a good title."

Wednesday, October 25, 2006

SC Supreme Court issues opinion on jurisdiction of Worker's Compensation Commission

In Doctors Hospital of Augusta, L.L.C. v. CompTrust AGC, the considered the following certified question: whether the statutorily created process for resolving fee disputes between a workers' compensation insurer and a medical provider applies to an out of state medical provider who performs medical services outside of South Carolina relating to a workplace injury occurring in South Carolina. The Court answered "no." According to the Court, the Commission does not have jurisdiction over fee disputes relating to fees charged by an out of state medical provider for services performed outside South Carolina relating to an injury occurring in South Carolina

SC Supreme Court holds that disbursement of loan proceeds in residential closing is the practice of law

In Doe Law Firm v. Richardson, the Supreme Court held that the disbursement of funds in the context of a residential real estate loan closing cannot and should not be separated from the process as a whole. Hence, the Court concluded that the disbursement of the funds must be supervised by an attorney. The Court did not specify the form that supervision must take, but simply stated that the attorney's duties includes overseeing this step of the closing process.

Yet another pitfall for real estate attorneys to avoid.

Monday, October 23, 2006

Marriage amendment tops among South Carolina's ballot questions

A constitutional amendment to outlaw gay marriage is on November's ballot in South Carolina.

The state already has a law that bars same-sex marriages, but supporters of the amendment argue a judge could strike the law down and open the door to gay unions in the state. has this story.

Myrtle Beach Online has this story about proponents and opponents gearing up for the media battle.

The Ballot Question will read as follows:

Must Article XVII of the Constitution of this State be amended by adding Section 15 so as to provide that in this State and its political subdivisions, a marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized; that this State and its political subdivisions shall not create, recognize, or give effect to a legal status, right, or claim created by another jurisdiction respecting any other domestic union, however denominated; that this amendment shall not impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State; and that this amendment shall not prohibit or limit the ability of parties other than the State or its political subdivisions from entering into contracts or other legal instruments?

Thursday, October 19, 2006

Fourth Circuit holds abatement decisions are unreviewable

In Hyman v. City of Gastonia the Fourth Circuit issued an interesting opinion on abatement. Hyman appealed the district court's application of North Carolina's doctrine of abatement, which resulted in the dismissal of Hyman's diversity action against the City of Gastonia. Under 28 USC 2105, "[t]here shall be no reversal" of an abatement ruling issued from a lower court. The panel interpreted this language to mean that the statute completely deprives an appellate court of authority to review a district court's abatement ruling.

Examples of abatement, according to the panel, include (1) a defense of prematurity, i.e., that the plaintiff commenced the lawsuit before the underlying cause of action accrued; (2) a defense that the plaintiff's interest in the pending lawsuit has terminated or transferred to another party; (3) a defense that a lawsuit cannot proceed because of the death of either the plaintiff or the defendant; and (4) a defense that there is a separate, identical lawsuit pending.

Hence, a favorable abatement ruling could be a powerful tool for a litigant to use.

Tuesday, October 17, 2006

S.C. Court of Appeals issues Statue of Elizabeth opinion

In Albertson v. Robinson, the South Carolina Court of Appeals pursuant to the Statute of Elizabeth found that a March 1, 2002 conveyance was void as fraudulent. Husband transferred his interest in the marital home to wife after husband failed to build a swimming pool and after Husband accepted a $11,000 down payment. The conveyance was voidable because it was made without consideration and (1) the Husband was indebted to the creditor at the time of the transfer; (2) the conveyance was voluntary; and (3) the Husband failed to retain sufficient property to pay his indebtedness to the creditor in full.

S.C. Supreme Court issues meaningful offer opinion

In Howell v. USF&G, the state Supreme Court answered a certified question and held that an insurer providing solely voluntary liability coverage for hired and non-owned vehicles is not required to comply with § 38-77-160 and make a meaningful offer of UIM.

Monday, October 16, 2006

Op-ed on our undemocratic Constitution

Sanford Levinson has an op-ed entitled Our Broken Constitution and argues what many consider the greatest American document is in reality a blueprint for undemocratic governance.

Friday, October 13, 2006

Exposing breasts is a form of legitimate political protest

Ok. This is not from SC or the Fourth Circuit, but is worth passing on:

A woman, who was arrested when she exposed her breasts to protest laws that bar women from publicly going bare breasted, can demonstrate topless as part of a legitimate political protest, an appeals court has ruled.

The 7th Judicial Circuit Court of Appeals on Oct. 5 upheld a Volusia County judge's opinion that Elizabeth Book could protest while topless on the city's Main Street Bridge.

Book, of Ormond Beach, was arrested by Daytona Beach police and fined $253 during Bike Week in March 2004. The city said she violated an ordinance banning public nudity that was passed in 2002 to curb indecency at special events.

Wednesday, October 11, 2006

Chief Justice John Roberts to speak at USC and Charleston Law Schools

From The State:

U.S. Chief Justice John Roberts will speak to University of South Carolina and Charleston School of Law students later this month, the schools announced.

Roberts will preside Oct. 20 over a special law student moot-court session at the University of South Carolina School of Law Auditorium.

Later that day, he will speak to law students and area lawyers at the Gailliard Auditorium in Charleston. Republican U.S. Sen. Lindsey Graham invited Roberts to both schools.

Tuesday, October 10, 2006

Court of Appeals holds failure to allow cross examination of co-defendants on possible criminal charges was harmless error

In State v. Curry, Curry sought to cross examine his co-defendants who faced the same murder charges as Curry and had not pled guilty or reached a plea agreement. The trial court refused to allow Curry to cross-examine his co-defendants on the possible sentences they faced because Savage and Simuel had not pled guilty or reached a plea agreement with the State. The Court of Appeals held that the trial court erred in barring the cross-examination of Simuel and Savage on the possible sentences they faced. However, the error was held to be harmless because the testimony given by the co-defendants was not the only evidence of Curry's involvement in the shooting.

South Carolina Court of Appeals issues opinion on "family purpose" doctrine

In Evans v. Stewart, Evans brought an action against Blake C. Stewart and Blake's mother, Cusack, seeking damages arising from an automobile accident caused by Stewart's negligence. Cusack was sued because under the family purpose doctrine, the head of a family who owns, furnishes, and maintains a vehicle for the general use and convenience of his family is liable for the negligence of a family member having general authority to operate the vehicle for such a purpose.

The trial court granted Cusack summary judgment, finding that the family purpose doctrine did not apply. The court of appeals affirmed. The Court noted that Stewart's deposition revealed that, while the truck was titled in Cusack's name, Stewart provided the bulk of the funds to purchase the vehicle, he paid for the maintenance of the vehicle, the truck was titled in his mother's name merely because Stewart was a minor at the time of purchase, and Stewart considered the truck to be his.

Monday, October 09, 2006

Judge John Breeden strikes down regulation requiring bars to sell a certain % of food to keep alcoholic beverage license

According to the South Carolina Department of Revenue, nightclubs must get "substantial revenue" from food sales to keep a liquor license. Circuit Court Judge John Breeden ruled last week that the amount of food sales plays no factor in whether a liquor license can be issued. The Department has promised to appeal this ruling.

Former Supreme Court Justice to sit by Designation in 2d Circuit

From Former Supreme Court Justice Sandra Day O'Connor will sit by designation in the Second Circuit on a panel hearing five cases this week.

Thursday, October 05, 2006

Zoloft Murderer to be transferred to Big House next week

From the AP:

A 17-year-old convicted of murders he said he committed while under the influence of an antidepressant is scheduled to be moved next week from a juvenile facility to an adult prison.

It's a move that attorney Andy Vickery hopes to thwart as he argues the murder appeal of Christopher Pittman on Thursday before the South Carolina Supreme Court.

Fourth Circuit holds that closure of employee cafeteria with withdrawal of employee benefit and arbitrable

In WASHINGTON METRO. AREA TRANSIT v. LOCAL 2, the Fourth Circuit considered whether closure of an employee cafeteria was arbitrable. The dispute arose when the transit authority announced it was going to close the cafeteria at its downtown-District of Columbia headquarters. At the time,the cafeteria had been operating for about 30 years, though it had been closed to the public since the terrorist attacks of September 11, 2001. The Authority justified the closure in terms of its need for the space to be used for other activities of the Authority, and the former cafeteria space is now used for storage and a law library. Based on the agreements between the parties, the panel agreed with the district court and held that this was the withdrawal of an employee benefit and thus subject to arbitration.

Wednesday, October 04, 2006

S.C. Court of Appeals holds that a party is "prevailing" even if winning on a technicality

EFCO Corporation v. Renaissance on Charleston Harbor involved the question of whether Renaissance was a prevailing party entitled to attorney fees under the mechanic's lien statute when the circuit court granted summary judgment in favor of Renaissance as to a lien primarily because EFCO did not bring a foreclosure action within six months of filing its lien as required by statute. The Court of appeals affirmed that Renaissance was a prevailing party because statutes of limitations are not simply technicalities and thus Renaissance was a prevailing party because it successfully defended the action based on EFCO's failure to comply with a statute of limitations.

Tuesday, October 03, 2006

South Carolina Supreme Court reverses summary judgment in SCE&G easement case

In Gressete v. SCE&G, landowners granted easements to SCE&G giving SCE&G "the right to construct, operate, and maintain electric transmission lines and all telegraph and telephone lines . . . Necessary or convenient in connection therewith. " Sometime in the 1990s, SCE&G began installing fiber optic communications lines on its existing poles in these easements. Fiber optic lines do not carry electricity but transmit digital signals. After setting up this communications network, SCE&G began conveying excess fiber optic capacity to third-party telecommunications companies without notice or compensation to Landowners.

Landowners filed suit, alleging that the easements granted to SCE&G do not include the right to apportion any part of these easements to third parties for general telecommunications purposes. The trial judge concluded that utility easements "confer a broad right to use the utility easement for additional purposes" and therefore SCE&G's conveyance was authorized as a matter of law. The Supreme Court reversed.

The Supreme Court recognized that the easements do state a conveyance to SCE&G and "its successors and assigns," but that the language limiting the use of the easement to communications necessary to SCE&G's business appears to restrict that assignability. This ambiguity required construction of the written easements themselves by the trial court.

Monday, October 02, 2006

How many issues should you raise on appeal??

Here is some sound advice from Howard Bashman:

When seeking discretionary appellate review in a court of last resort, such as the U.S. Supreme Court or a state's highest court, it's preferable to raise just one or two issues -- and no more than three issues should be raised unless absolutely necessary. Because the odds are squarely against any given case qualifying for discretionary review in a court of last resort, the possibility that a single case might raise three or more separate issues meriting discretionary high court review is highly improbable.

Chief Justice Roberts speaks on judicial independence

Legal Times has this article on the Chief's speech. Here is a taste:

"The judge's commitment to the preservation of our rights often requires the lonely courage of a patriot," Roberts quoted Reagan as saying 25 years ago. "To the extent that attacks on judicial independence come from conservative quarters, I would commend to those quarters the words of the leading conservative voice of our time."

Friday, September 29, 2006

What to expect from the Roberts Court


Roberts' second term as chief justice begins Monday with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.

The cases will bring crucial and tricky choices for the Court's other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O'Connor on the bench, as well as for Justice Anthony Kennedy, who replaced O'Connor in the less official position of swing voter

Thursday, September 28, 2006

Columbia, SC possibly banning smoking in bars

Next time you argue in one of the state's appellate courts, don't plan on stopping for a brew and a smoke on the way out of town. Some Columbia city leaders pushing for smoking ban. According to WIS, some Columbia city leaders are pushing for a ban on smoking in all public buildings, including bars and restaurants. That proposal was the focus of a public hearing City Council held Wednesday.

Wednesday, September 27, 2006

Matthew J. Perry to be inducted into Hall of Fame

From The State: Judge Matthew J. Perry Jr., the first black federal judge in South Carolina, is among 14 people to be inducted into this year's National Black College Alumni Hall of Fame.

Tuesday, September 26, 2006

South Carolina Supreme Court holds that 5-27-120 does not create a private right of action

In Vaughn v. Town of Lyman, the Supreme Court held that S.C. Code Ann. 5-27-120, which requires towns to keep sidewalks in good repair, does not create a private cause of action. The basis for this holding is the public duty rule. This rule holds that public officials are generally not liable to individuals for their negligence in discharging public duties as the duty is owed to the public at large rather than anyone individually. However, the Court did hold that there was a common law duty to keep sidewalks in good repair and that Vaughn could bring a common law cause of action. The Tort Claims Act did not protect the town because there was an issue of fact whether the town had notice of the defect and acted within a reasonable amount of time.

South Carolina Supreme Court upholds Physical Therapy Practice Act

In Sloan v. South Carolina Board of PT Examiners, the Supreme Court held that legislation prohibiting physical therapists from working for physician practices and receiving referrals from the physician practice is constitutional. The Plaintiffs argued that there is no rational basis for prohibiting physical therapists from receiving in-house referrals from the physicians who employ them. Self-referral concerns about escalating health care costs, conflicts of interest, and excessive profits apply to all South Carolina health care providers and not just to physical therapists. In the ambit of in-house referrals, all South Carolina health care providers are similarly situated and must be treated the same under state and federal equal protection analysis.

The Supreme Court disagreed, holding that the classification is not all health care providers who receive in-house referrals, but rather just physical therapists. And since the classification treats all PTs the same, the Court upheld it as constitutional. Justice Toal dissented:

The majority concludes that it would be inappropriate to hold that the legislature must treat all health care providers and allied health professionals as similarly situated for purposes of self-referral issues. I disagree. In my view, this is precisely the type of situation in which the legislature should treat all health care providers and allied health professionals as similarly situated. Unlike the majority, I would find that the classification has no reasonable relation to the types of variations and nuances of the medical profession which would necessitate a distinction between physical therapist and all other health care professionals. Although I would agree that the separate classification of physical therapists may be appropriate in other situations, I find it difficult to envision any aspect of physical therapy which is so different from other health care services that it warrants separate classification for self-referral purposes.

I was amicus curiae for a group of patients who wanted the statute struck down. Needless to say, I'm with Justice Toal on this one!

Monday, September 25, 2006

Fourth Circuit issues decision regarding inverse condemnation

In PRESLEY v. CITY OF CHARLOTTESVILLE, a panel of the Fourth Circuit considered the district court's dismissal of a section 1983 action against the City Presley alleged that, without her consent, the Defendants conspired to publish a map that showed a public trail crossing her yard and that the public, using the trail, caused much damage to her property. Presley asserted that the Defendants' actions violated her Fourth Amendment and due process rights. The district court granted the Defendants' motions to dismiss Presley's complaint for failure to state a claim upon which relief could be granted. The panel affirmed that there was no denial of due process, but reversed the district court on the Fourth Amendment claim.

An interesting dispute developed on the panelregardingf the Fourth Amendment claim. Judge Traxler in dissent argued that t Fourth Amendment claim was improper and that the true claim was a takings claim under the Fifth Amendment. The dissent saw the case an one of inverse condemnation and believed that the majority's decision upsets federal inverse condemnation law.

Friday, September 22, 2006

Lindsey Graham cannot serve both in Congress and as a military judge

From The State:

It is unconstitutional for Sen. Lindsey Graham to serve as a member of Congress and a military judge at the same time, the U.S. Court of Appeals for the Armed Forces ruled.

Graham, R-S.C., is a colonel in the U.S. Air Force Standby Reserve, and is assigned as a reserve judge to the Air Force Court of Criminal Appeals.

The decision Wednesday came after Airman 1st Class Charles M. Lane, who was convicted of wrongful use of cocaine during a special court-martial, challenged Graham's qualification to serve on the appellate court, saying it was a conflict of interest.

"We conclude that a member of Congress may not hold the office of appellate judge on a court of Criminal Appeals," the panel said in its decision.

The opinion of the court can be found here.

The Incompatibility Clause of the Constitution provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The issue before the Court was whether the assignment of a Member of Congress to the Air Force Court of Criminal Appeals is proper under the Constitution. The Court concluded that the assignment was inappropriate because of the clear violation of the Incompatibility Clause.

Thursday, September 21, 2006

Supreme Court hears arguments on sale of Mental Health property

From the Times and Democrat:

The South Carolina Supreme Court is weighing the questions of whether or not charitable trust law applies to the nearly 200 acres of Department of Mental Health land in downtown Columbia and under what conditions the property may be sold.

The state Supreme Court heard arguments Wednesday, after the Mental Health Commission and the State Budget and Control Board asked the state's top court to clarify whether a trust controls the massive Bull Street campus.Attorney General Henry McMaster said the agency's mission is a public charity and the entire Bull Street property is thus a charitable trust, an argument he also gave in an opinion he issued last December.

"A charitable trust is not an office or an address or a location but it's a relationship and that clearly existed here," McMaster said, adding that promises dating to the 1800s call for the land to be used to care for the mentally ill.McMaster said the state couldn't just sell the land for another use. "Most properties bought by the state can be handled in that fashion but this one was different," McMaster said.

Wednesday, September 20, 2006

Ron Motley files suit on behalf of camel jockeys

Do you think Ron smells a dollar here? Motley Rice has filed a class-action lawsuit accusing several Arab sheikhs of being involved in enslaving boys to be camel jockeys. The lawsuit claims that young boys are kidnapped or sold by their parents and trained to ride racing camels. They are allegedly treated much worse than the animals and thrown out when they are too old to race.

Tuesday, September 19, 2006

Lindsay Graham will not stop Jim Haynes from being voted out of Committee

From an interview with Hugh Hewitt:

HH: And will you vote to send William Haynes to the floor?

LG: He hasn't yet, but the truth is, I'll have a hard problem voting for Mr. Haynes. And you know, everybody else, I'm good to go, but I'll have a hard problem voting for him.

HH: Why is that?

LG: Because I believe that he was a responsible party at the Department of Defense at a time to come up with legal infrastructure in the War On Terror that really confused our troops. And I just don't want to make sure we put privates and sergeants in jail and fire the colonels. I think there has to be some accountability at the civilian side in the Department of Defense for creating policies that really have hurt the country. He's a good guy. He's an honest man, but I just have a hard time reconciling that, and he hasn't answered all the questions, yet, so I don't know where he's going to be. But I will not stop him from coming out of committee. If I don't vote for him, you can still send it to the floor.

Fourth Circuit upholds constitutionality of Uniformed Services Former Spouses' Protection Act

In ADKINS v. RUMSFELD the Fourth Circuit considered constitutional challenges to the Uniformed Services Former Spouses' Protection Act, which gives states the option to classify a United States armed forces member's disposable military retirement pay as property divisible upon divorce. In addition, the Act establishes a payments mechanism allowing an eligible former spouse to receive the share of the retired pay directly from the military pursuant to a state court order in divorce proceedings.

Current and retired members of the armed forces whose retirement pay has been divided in state divorce proceedings, sued the Secretary of Defense arguing that the Act and the regulations implementing it violate their constitutional rights to due process and equal protection of law. They also allege that the Act fails to respect the principle, purportedly rooted in the Constitution's Armed Forces and Full Faith and Credit Clauses, that legislation concerning military pay must have nationally uniform effect without variations among the states. The panel upheld the Act and rejected all constitutional challenges of Plaintiffs

Friday, September 15, 2006

William W. Wilkins, chief judge of the 4th U.S. Circuit Court of Appeals, says death penalty is here to stay

From the Richmond Times Dispatch:

"I think the death penalty will be around for a long time," Wilkins said. "But I think you're going to see escalating costs." Those opposing the death penalty argue the money can be better spent elsewhere, he said.

"It costs a lot of money for the federal and the state governments to prosecute somebody for the death penalty," Wilkins said. In Florida, such cases average about $22 million, he said.

Wilkins, a former prosecutor, has been involved in 96 death-penalty cases as an attorney or judge. He is chief judge of the Richmond, Va.-based federal court that hears appeals of federal cases from the Carolinas, Virginia, West Virginia and Maryland.

He said while polls show a majority of Americans favor the death penalty, jurors impose capital punishment in only about 10 percent of death-penalty cases.

Thursday, September 14, 2006

Tears Equals Mistrial

This is not from SC, but pretty relevant. In a death penalty case in Florida, the defense got the following instruction from the Judge when the mother of the victim was about to testify:

"If she gets emotional, I will grant a motion for a mistrial," Roberts said, eliciting emphatic headshakes from Dosso's friends and family. "If [the prosecutor] wants to put her on the stand with that in mind, he may do so."

In a compromise, both sides agreed to let the witness give her testimony outside the presence of the jury and then play a video of the testimony for the jury if it was deemed "unemotional" enough.

Wednesday, September 13, 2006

Fourth Circuit Judge J. Harvie Wilkinson on Gay Marriage and the Courts

This is an interesting op-ed by the former Chief Judge of the Fourth Circuit. Here is a taste:

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

Fourth Circuit affirms provisions of Virginia's Alcoholic Beverage Control Act

In BROOKS v. VASSAR, the Fourth Circuit considered a facial challenge, under the dormant Commerce Clause, to various aspects of Virginia's Alcoholic Beverage Control Act ("ABC Act"). The Court sustained the following statutes:

(1) Virginia Code 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and

(2) Virginia Code 4.1-119(A), which authorizes state owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.

The first statute was upheld because it does not favor in-state producers and thus does not discriminate against out-of-state producers:

Because the Twenty-first Amendment "grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system," and because the dormant Commerce Clause only prevents a State from enacting regulation that favors in-state producers and thus discriminates against interstate commerce, the Personal Import Exception does not violate the Clause.

The second statute was upheld under the market participant exception:

Virginia's choice of selling only Virginia wine is no more inappropriate than would be its choice to sell only Hershey's brand chocolate bars at a State commissary. Like all other in-state wine retailers, the ABC stores can choose which wines they purchase and stock, and Virginia's commitment to purchase only in-state wines is a choice that any wine retailer would be free to make for itself.

Tuesday, September 12, 2006

Zoloft murder appeal to be argued in SC Supreme Court

From ABC News:

The South Carolina Supreme Court will hear arguments next month in the appeal of the murder conviction for a boy convicted of killing his grandparents in Chester County.

Christopher Pittman's attorneys are appealing the conviction last year in the 2001 slayings. Pittman was 12 at the time of the slaying. His attorneys said he was involuntarily intoxicated by the anti-depressant Zoloft and didn't know right from wrong.

Defense attorney Andy Vickery says there were errors in the trial and that sentencing a juvenile to 30 years in prison amounts to unconstitutional punishment.

A lawsuit filed last week seeks to overturn the state's first municipal ban on indoor smoking

From the Island Packet:

The lawsuit, filed on behalf of Bert's Bar on Sullivan's Island, seeks to prove that smoking bans on the municipal level are prohibited under state law. In the suit, the restaurant argues that the Sullivan's Island ban that went into effect in May runs afoul of the Clean Indoor Air Act of 1990, which prohibits smoking in areas such as schools, government buildings and theaters, and a 1996 provision that says local laws cannot supersede state law.

Monday, September 11, 2006

Fourth Circuit holds that district courts lack authority to remit restitution order imposed under the Mandatory Victim Restitution Act

In UNITED STATES v. ROPER, the Fourth Circuit considered the Government's challenge to a district court's remittance of restitution. The Government asserted that because the district court imposed the restitution orders pursuant to the Mandatory Victim Restitution Act (MVRA), it lacked the authority to remit the restitution orders.

The panel held that the MVRA, in narrow circumstances, does allow for the reduction of an order of restitution where the victim has recovered a portion of the loss in a federal or state civil proceeding. However, this one exception was not present in this case. The Fourth Circuit concluded: "Because the MVRA includes one unique circumstance where district courts may reduce a mandatory order of restitution, we will not read into the statute any additional authority to remit such orders." Hence, the Court remanded with instructions to reinstate the restitution orders.

Wednesday, September 06, 2006

Fourth Circuit holds that "cocaine base" is not confined to crack

In UNITED STATES v. RAMOS, the Fourth Circuit considered, inter alia, whether the enhanced penalties in 21 U.S.C. 841(b)(1)(A)(iii) apply only to crack cocaine. The Court held that the plain language of the statute imposed no such limitation.

While we believe that Congress contemplated that "cocaine base" would include cocaine in the form commonly referred to as "crack" or "rock" cocaine, Congress neither limited the term to that form in the plain language of the statute nor demonstrated an intent to do so in the statute's legislative history. Congress used the chemical term "cocaine base" without explanation or limitation.

Tuesday, September 05, 2006

Fourth Circuit affirms denial of Sudan's motion to dismiss in USS Cole case

In RUX v. REPUBLIC OF SUDAN, a suit for damages arising out of the bombing of the USS Cole, the Fourth Circuit reviewed that district court' order denying Sudan's motion to dismiss for lack of subject matter jurisdiction. Sudan argued that the terrorist exception of the Foreign Sovereign Immunities Act was inapplicable in this case. Under the terrorist exception, a court reviews the complaint for allegations of (1) the provision of material support by a state sponsor of terrorism; (2) the provision of such support by an official of the state "while acting within the scope of his or her office, employment, or agency"; and (3) a causal link between the material support and damage resulting from an act of terrorism.

As for the first prong, the Court found that the allegations that Sudan supplied terrorists with "safe houses" constituted material support. The second prong was satisfied because the complaint alleged that the president of the Republic of Sudan authorized the entry into Sudan by Al-Qaeda operatives and gave Al-Qaeda special authority to avoid paying taxes and duties. Finally, the third prong was satisfied because the Complaint alleged facts sufficient to establish a reasonable connection between Sudan's support of Al-Qaeda and the damage to the USS Cole.

Thursday, August 31, 2006

Fourth Circuit clarifies circumstances of joint employment under FLSA

In Schultz v. Capital International Security, Inc, the Fourth Circuit Court of Appeals clarified the circumstances under which an employee is jointly employed by two employers pursuant to the Fair Labor Standards Act ("FLSA"). The court also further elucidated the difference between an independent contractor and an employee for purposes of determining a worker's entitlement to overtime. The district court had entered judgment in favor of the defendants, holding that the plaintiffs were not entitled to overtime because they were independent contractors as opposed to employees, but the Fourth Circuit vacated this judgment following a determination that the defendants were joint employers and that the plaintiffs were their employees for purposes of the FLSA.

In analyzing the issue of whether the plaintiffs were independent contractors or employees, the court noted that the issue is not the degree of control that an alleged employer has over the manner in which the work is performed in comparison to that of another employer. Rather, according to the Fourth Circuit, it is the degree of control that the alleged employer has in comparison to the control exerted by the worker. This analysis goes to the heart of the ultimate question--whether the worker, as a matter of economic reality, is dependent on the business the worker serves or, conversely, whether the worker is in business for himself. Once the court determined that the plaintiffs were employees, it easily determined that the defendants were joint employers on the basis that the plaintiffs performed work that simultaneously benefited both of the defendants.

(contributed by Sandi R. Wilson)

Fourth Circuit remands for a decision on the merits regarding challenge to Virginia's open primary law

In MILLER v. BROWN, the Fourth Circuit considered a district court order dismissing a constitutional challenge to Virginia's open primary law for lack of justiciability. The district court held that Virginia's 11th Senatorial District Republican Committee and its chairman, Larry Miller had no standing to challenge the open primary and that any claimexistingg was not ripe. At base, the GOP does not want the Dems participating in the GOP primary.

The Fourth Circuit disagreed that there was no standing. According to the panel:

Focusing on the plaintiffs' injuries reveals that their alleged constitutional injuries are not conjectural or hypothetical. The participation of Democrats in the plaintiffs' upcoming primary is inevitable. Knowing their upcoming process for selecting a nominee will include Democrats prevents the plaintiffs from formulating a message and selecting the candidates best tailored to their party's interests.

The panel also found that the case was ripe: "The only issue in the case is whether Virginia's open primary law violates the plaintiffs' First Amendment rights to freely associate." The Court rejected a contention that the GOP had to wait until at least twocandidatess had filed for office because there would be "insufficient time to decide the case without disrupting the pending election."

Wednesday, August 30, 2006

Fourth Circuit vacates another sentence at variance with the Guidelines

In United States v. Curry, Curry was convicted in a jury trial for various fraudulent transactions on e-bay. At base, Curry sold gold coins that he did not have. The district court sentenced Curry to twelve-month terms of incarceration on each count, to be served concurrently and followed by twelve months of home detention and three years of supervised release. This sentence was at variance with the Guidelines and the Government appealed.

The district court departed from the Guidelines and imposed a variance sentence because in its view that Curry did not at the outset intend to defraud the buyers. The Fourth Circuit held that this was an improper basis on which to depart because the district court contradicted the weight of evidence and the verdict. The district court also cited Curry's payment of restitution. Again, the panel held that this was insufficient: "we find that Curry's restitution is by itself insufficient to justify the 70 percent variance at issue" because "Curry did not begin making restitution until the jury convicted him of the charges." Hence, the sentence was vacated.

Tuesday, August 29, 2006

S.C. Supreme Court strikes statute requiring engineering experts to have a SC license

In Baggerly v. CSX Transportation, the Supreme Court reversed a grant of a directed verdict for CSX. In this case, a train engineer was injured when his train derailed after a street sweeper had jumped the curb and collided with the railroad track. Although the sweeper operator was negligent, the court held that there was enough evidence to show that the negligence of the sweeper operator, combined with CSX's negligence regarding insufficient ballast on the roadbed, to bring about the derailment.

Also important in this opinion is the court's decision regarding an out-of-state expert in engineering who was excluded by the trial court under Pursuant to South Carolina Code Section 40-22-30, because the expert was not a South Carolina licensed professional engineer. This Code section provides:

Practice of engineering means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, expert technical testimony....

The Supreme Court held that exclusion of the expert would clearly contravene SCRE 702: "Without clear indication from the Legislature that the 2000 amendment was, in fact, intended specifically to limit Rule 702 in this way, we decline to adopt that interpretation."

Of course, there is not doubt that the legislature intended to prohibit out-of-state engineers from offering expert testimony in our courts. The legislature did the same thing with medical experts, but earlier this week the Supreme Court suspended the legislature's effort at redefining the practice of medicine when there was no actual case or controversyy before it.

Monday, August 28, 2006

Carolina Investors case near final payout

From the Greenville News:

The 12,000 people who lost money when Carolina Investors Inc. failed nearly 3-1/2 years ago likely will get one final payout before the books are closed on a saga that erased an estimated $278 million from a life's work for retirement, small businesses and college funds for grandchildren.

At most, however, they will get another half a penny to add to the 18 cents they have received for each dollar they lost when the Pickens-based company ran out of money and abruptly closed its doors.

Friday, August 25, 2006

S.C. Supreme Court delays enforcement of Act requiring physician experts to have a SC license

The Supreme Court has temporarily delayed judicial enforcement of Act 385 of 2006 insofar as the Act requires a physician to obtain a license to practice medicine in South Carolina before offering expert medical testimony in a South Carolina administrative or court proceeding. According to the Court:

the effect of the revised statutes has the potential to substantially impair the orderly administration of justice. Specifically, Act 385 casts serious doubt on a physician's ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina. This categorical exclusion overlooks the fact that the physician may have treated the patient in the physician's home jurisdiction, and also that the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state. We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope.

Thursday, August 24, 2006

Bikini murder carries a death sentence

From CNN: A prosecutor said Tuesday he will seek the death penalty for a Tennessee man charged in the slaying of a Clemson University student who was strangled with a bikini top.

DSS fails to follow law in child welfare cases

From the Times and Democrat:

The state Department of Social Services fails to follow state law in child protection cases, according to a state audit released Wednesday.The Legislative Audit Council report says DSS workers aren't following the law requiring reports and visits in cases involving abuse and neglect. More than half of the sample of cases they reviewed showed caseworkers failed to visit once a month. Auditors also found DSS staffers sometimes did not complete abuse investigations within the required 60-day period.

Meth labs in S.C. 'popping up everywhere'

According to the AP: Methamphetamine is becoming the drug of choice in South Carolina, creating paranoid addicts who turn to crime to support their habits, state and local law enforcement officials say.

Wednesday, August 23, 2006

Fourth Circuit holds that good faith is relevant to section 841 charges brought against physicians

In UNITED STATES v. HURWITZ, a jury convicted Dr. William E. Hurwitz of multiple counts of drug trafficking for prescribing narcotic pain medicine in violation of federal statutory law. Hurwitz appealed his conviction, inter alia, arguing that the trial court improperly instructed the jury on the law. To convict a doctor for violating section 841, the government must prove: (1) that the defendant distributed or dispensed a controlled substance; (2) that the defendant acted knowingly and intentionally; and (3) that the defendant's actions were not for legitimate medical purposes in the usual course of his professional medical practice or were beyond the bounds of medical practice. Hurwitz argued that the district court erred by rejecting his request for a "good faith" instruction inasmuch as his good faith in issuing the challenged prescriptions was relevant to his intent when treating his patients and thus relevant to the jury's determination of whether he acted outside the bounds of accepted medical practice or without a legitimate medical purpose. The judge did not charge good faith on the trafficking counts because he believed that good faith was legally irrelevant. The panel disagreed with the district court, noting that it is proper to instruct juries that a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients. The panel further held that this good faith determination is objective rather than subjective. The conviction was vacated and remanded for a new trial.

S.C. Supreme Court promulgates rules providing for appeal of agency decisions to appellate court rather than the circuit courts

Until Act No. 387 went into effect July 1, all appeals from agency decisions, including decisions of the administrative law court, have been to the circuit court. Now, appeals from decisions of the administrative law court and certain agencies will be to the Supreme Court or the Court of Appeals as provided by the South Carolina Appellate Court Rules.

In light of Act 387, the Supreme Court has promulgated emergency amendments to the appellate rules.

Tuesday, August 22, 2006

S.C. Supreme Court holds probation condition of non-association with those having a criminal record does not violate due process

In State v. Allen, Mr. Allen challenged a condition of probation that prohibited him from associating with anyone with a criminal record. Allen argued that this condition violated due process and is generally unenforceable because it is overly broad. Allen asserted the condition would, for example, prohibit someone from associating with a spouse or relative who has a criminal record, or from working at a place which employed anyone with a criminal record.

The Supreme Court rejected these arguments. According to the Court:

In the present case, we reject Appellant's arguments and uphold the validity of the standard condition that Appellant not associate with persons with a criminal record. The condition is not so overly broad as a general rule that it violates due process in all cases; nor does application of the condition under the facts and circumstances of this case violate due process. The condition is reasonably related to the crime for which Appellant was convicted, is intended to prevent future criminal conduct, and should aid in Appellant's rehabilitation.

We further hold, as the trial court and other courts have recognized, that the no-association condition implicitly requires a finding that the probationer knew the person in question had a criminal record during the period of association, and that the association was not simply an unknowing or incidental encounter.

S.C. Supreme Court reverses judgment for SCE&G in electronic easement case

In Gressette v. SCE&G, Landowners sued SCE&G for trespass, unjust enrichment, an injunction, and declaratory judgment. Landowners claimed SCE&G's conveyance of excess capacity on its fiber optic cables was an improper use of the electric easements granted by Landowners to SCE&G. The trial judge granted SCE&G's motion to dismiss under Rule 12(b)(6).

The Supreme Court reversed the grant of the motion to dismiss. The issue, according to the Court, was whether SCE&G may apportion its allowed use to third parties. Because this issue could not be resolved without construing the instruments granting the easements in question, the Court held the granting of the motion to dismiss was improper.

S.C. Supreme Court hints that failure to keep proper records on breathalyzer could result in suppression of test results

In State v. Landon, the Supreme Court held that the failure to disclose repair and maintenance records for breathalyzer equipment pursuant to a Rule 5 request does not warrant suppression of breath test results absent a showing that such records are material to the defense. The Court did note that information regarding the DataMaster is exclusively within the State's control, and that SLED's failure to provide a detailed record significantly hampers the defendant's ability to show prejudice. Hence, the Court held that once a defendant makes a prima facie showing of prejudice, the burden must shift to the State to prove the defendant was not prejudiced, either by providing records to show the machine was working properly at the time of testing or by some other contemporaneous evidence.

Monday, August 21, 2006

Fourth Circuit holds that ADHD is not enough to overcome an appeal waiver

In UNITED STATES v. COHEN, Cohen pled guilty to mail fraud. After sentencing, Cohen sought to appeal, arguing that the district court erred in determining the amount of loss for sentencing purposes and in calculating the amount of restitution owed to his victims. The United States moved to dismiss the appeal based on an appeal waiver contained in Cohen's plea agreement. The plea agreement provided that he

waive[ed] knowingly and expressly all rights, conferred by 18 U.S.C. 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the [applicable and advisory] Guideline range, reserving only the right to appeal from an upward departure from the Guideline range that is established at sentencing. . . .

Cohen argued that the panel should find his appeal waiver to be invalid and unenforceable because of his ability to knowingly and intelligently waive his right to appeal was compromised by his Attention Deficit Hyperactivity Disorder. The panel rejected this argument because the district court undertook a careful inquiry to determine that Cohen was competent and understood what he was doing by entering into the plea agreement and pleading guilty; the district court asked specific questions about Cohen's ADHD condition; Cohen was represented by counsel during the proceedings, who assured the district court that the various doctors who evaluated Cohen all found him competent to understand the nature of the court proceedings; and Cohen's attorney further stated that he had no difficulty communicating with Cohen and had no reason to doubt Cohen's competency.

Hence, the panel dismissed the appeal.

Thursday, August 17, 2006

Ct. of Appeals issues opinion on malice in a malicious prosecution case

In Guider v. Churpeyes, Inc., Guider was an employee of Church's Chicken and stole $800 from the Company before she quit. She came clean, and eventually returned the money to Church's by depositing the funds in the company's bank account on June 13, 2003. She had retained possession of the funds for eight days, during which time Church's did not have access to the funds. A municipal court judge signed the arrest warrant on June 19, 2003. Police served Guider with the warrant on June 29, and arrested her on the charges. The charges were dismissed the following day when Church's failed to appear at Guider's hearing. Guider sued for abuse of process and malicious prosecution. The trial court denied Church's motions for directed verdict, and Church's appealed.

The Court of Appeals reversed, holding that there was no malice in the prosecution of Guider. According to the Court: "A reasonable party could only conclude Church's had probable cause to believe Guider guilty of breach of trust. We find Guider failed to meet her burden of proving Church's lacked probable cause to bring breach of trust charges against her. "

Wednesday, August 16, 2006

S.C. Court of Appeals issues opinion on actual malice standard

In Metts v. Mims, the state Court of Appeals decided a defamation case and issued guidance on what is actual malice. The case concerned a newspaper article regarding county officials using county work crews to perform work at the officials' residences. Metts's claim of actual malice in this case hingedon the reporter's failure to investigate allegations that Mett's used the work crews at his house even though the reporter received a list of offending officials that did not contain Metts' name. The Court of appeals found no actual malice:

Newspaper is a small weekly publication, and the evidence reveals the reporter received the list a few hours before the deadline for submitting final articles. We agree with the circuit court that the evidence indicates the reporter failed to investigate due to time constraints and a number of other obligations, including numerous editorial and administrative tasks. Although the reporter's actions may have been negligent, we cannot say that they constituted an extreme departure from the standards of investigation normally employed by publishers so as to rise to the level of constitutional actual malice.

Hence, the grant of summary judgment to the newspaper was affirmed.

S.C. Supreme Court reverses PCR judge's grant of new trial

In Watson v. State, the PCR judge granted Watson a new trial because trial counsel failed to object to hearsay testimony concerning Watson's alleged sexual abuse of the victim. At the PCR hearing, trial counsel testified that she did not object to the hearsay testimony because she wanted to avoid the possibility that the prosecution would have shown the video of the victim talking about the sexual abuse. Counsel stated that, "I used my own judgment. Had I objected, then they could have shown the video and shown the child again. And I did not think that was wise, to keep showing that. . . the child telling about the abuse over and over, and over, and the jury seeing the child telling that over and over and over." The Supreme Court held that this was a valid reason to fail to object and reversed the grant of a new trial.

Tuesday, August 15, 2006

S.C. Supreme Court reverses conviction for failure to show actual dominion over drugs seized

In State v. Heath, the Supreme Court held that the State failed to present evidence that Heath was in constructive possession of the cocaine found outside his mother's house and thus should not have been convicted of trafficking. The police discovered crack in a car-washing mitt in a recycling bin outside near the back door of the house. The State presented no direct or circumstantial evidence linking Heath to the 43.48 grams of crack. Heath lived in the home where the crack was found, but the home was owned by his mother. As a result, the Court held, it was arguable that Heath merely had a right to access the area where the crack was found, not actual dominion and control of the property.

S.C. Supreme Court finds duty of care when person agrees to provide services to a mentally disabled client

Babcock Center is a private, non-profit corporation based in Columbia that provides housing and other services for people with mental disabilities. "Madison" was a mentally retarded female resident of the Center. Madison left the Center one night, got in a car with former Center residents, had sex with the former residents and contracted sexually transmitted diseases. In Madison ex rel Bryant v, Babcock Center, Madison and her guardian sued the Center, alleging various causes of action. The circuit court granted summary judgment to Babcock Center on the ground it owes no legal duty of care--apparently the trial court believed there was either no duty or a 24-hour duty of constant watch. The Supreme Court reversed, holding that a private person or business entity which accepts the responsibility of providing care, treatment, or services to a mentally retarded or disabled client has a duty to exercise reasonable care in supervising the client and providing appropriate care and treatment to the client.

The trial court also held that the South Carolina Department of Disabilities and Special Needs, which contracted with the Center, owed no duty to Madison. The Supreme Court disagreed, citing the same common law standard as the Babcock Center.

Monday, August 14, 2006

Center for Capital Litigation closes its doors

According to this article from The Greenville News, the Center for Capital Litigation, a nonprofit lawyers group that represented death row inmates in appeals for decades in South Carolina, has closed its doors because of a lack of money.

Joseph Savitz, chief attorney for the South Carolina Office of Appellate Defense, said there is "nobody left" to replace the center. "The fact that they are no longer here increases the chances of an execution that shouldn't occur," he said. "It's a sad thing that there's no money available, especially given the recent disclosures of innocent men sitting on death row and the wrong people being executed."

S.C. Supreme Court challenge to law making it a crime to disturb schools

According to The State:

The S.C. Supreme Court will hear a Greenwood County case next month that challenges state law making it a crime to disturb schools. Lawyers for a boy convicted of disturbing his school will argue that the law is overly broad.

In South Carolina in fiscal 2004-05, there were 2,801 disturbing-school cases referred to solicitors. It was the top juvenile offense for that year, state Department of Juvenile Justice records show.

Thursday, August 10, 2006

Fourth Circuit issues Title II and Section 1981 Opinion

In DENNY v. ELIZABETH ARDEN SALONS, the Fourth Circuit dealt with the District Court's grant of summary judgment in favor of Elizabeth Arden Salons on Title II and Section 1981 claims. At base, the Salon refused to style Denny's hair because they "didn't do black people's hair."

Title II entitles individuals "to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin." The following are listed as places of public accommodation: (1) hotels, (2) restaurants and(3) "place[s] of exhibition or entertainment." The Fourth Circuit held that a hair salon does not fall within the statute and thus no Title II claim could be brought.

Plaintiff also brought a section 1981 claims which provides that all citizens have the right to make contracts the same as white citizens. On this claim, the Fourth Circuit reversed the district court's grant of summary judgment. According to the Court:

In fact, it is hard to imagine plainer evidence of purposeful discrimination than when services are denied expressly because the purchaser is African American. When Seandria Denny arrived to pay for her mother' s hair coloring, the receptionist explained that the salon did not "do black people' s hair." Denny also alleges that Chelsey Orth, the salon's manager, confirmed this view from management's perspective. Orth further explained that each and every one of the eight or nine hair stylists present refused to work on Jean Denny's hair. While there may be a more benign explanation for the salon's refusal to fully serve plaintiffs, the receptionist's overt racial explanation creates a triable dispute.

Wednesday, August 09, 2006

Fourth Circuit decides duty to defend case

In COWAN SYSTEMS v. HARLEYSVILLE MUTUAL INSURANCE, the Fourth Circuit held that Harleysville Mutual Insurance Company had a contractual duty to provide Cowan Systems, Inc. with a defense in an action commenced against Cowan by Linens N Things, Inc., who, facing a claim for premises liability, sought indemnity from Cowan based on an indemnification provision in a commercial contract between them. At base, a driver for Cowan was injured while he was delivering an empty Linens N Things trailer to a mud lot leased by Linens N Things. He fell on the ice and then filed a personal injury action against Linens N Things alleging that Linens N Things had negligently failed to remove ice and snow from the mud lot. Linens N Things filed a third-party complaint against Cowan to have Cowan indemnify Linens N Things for its premises liability. When Cowan presented the suit papers to its insurer, Harleysville, Harleysville denied coverage, claiming that it had no duty to defend.

Harleysville conceded that the CGL policy provided Cowan coverage for certain tort liability that Cowan assumed by contract. But, it argued that the contractual coverage did not insure Cowan's indemnification of liability to an employee of Cowan because the driver was not a "third person or organization" whose claim was covered by the contractual coverage provision. The Fourth Circuit found that employment status did not change the fact the driver was not a party to the Truckload Transportation Agreement and therefore was also a "third person" with respect to the contractual indemnification in that agreement. Accordingly, coverage existed.

Tuesday, August 08, 2006

S.C. Court of Appeals issues standing opinion in CON case

In Commander Health Care Facilities, Inc v. DHEC, Commander filed a declaratory judgment action seeking to overturn DHEC's approval of additional new Medicaid beds for Heritage Home. Commander also sought a declaration that DHEC’s grant of permission to Heritage Home to build new Medicaid beds under Proviso 9.35, which gave DHEC permission to grant requests for new beds without obtaining a CON.

The Court of Appeals upheld the circuit court's decision that no standing existed. Commander suffered no injury because it failed to put forth any evidence that it applied for and was denied Medicaid beds contemporaneous with or since Heritage Home was awarded beds under the Proviso and it did not assert that it had any particular plans to apply for beds in the future. Without an injury, there is no standing.

S.C. Supreme Court overturns murder conviction because of prosecution's Golden Rule argument

In State V. Reese, Willie Reese was tried and convicted of murdering Teresa Reese. In closing argument, the solicitor asked the jury "Who speaks for Teresa Reese?" He than told the jurors that they did. The defense lodged a timely objection and made a motion for a mistrial. The Supreme Court agreed that this was improper "Golden Rule" argument:"The solicitor argument indisputably asked jurors to abandon their impartiality and view the evidence from terraces viewpoint." Hence, a new trial was granted.

Remember: Key to this case was a timely objection. Had there been no objection, the argument would be been waived and no new trial would have been granted.

Monday, August 07, 2006

BMW enters into consent order regarding unpaid wages

The U.S. Department of Labor announced last week that a complaint and consent judgment with BMW has been reached for unpaid overtime at its South Carolina plant.

The judgment calls for payment of $629,869 in overtime back wages to 1,224 workers in Spartanburg, S.C. The suit was based on an investigation by the department's Wage and Hour Division into violations of the Fair Labor Standards Act.

According to the department, the company failed to pay automobile body and paint shop workers for time spent putting on (donning) and taking off (doffing) required safety gear and for time spent walking to and from work stations, which resulted in unpaid overtime. The period covered in this judgment is between April 2003 and March 2006.