Friday, December 29, 2006
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
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."
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
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
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
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
Tuesday, December 19, 2006
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
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
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
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!
Monday, December 11, 2006
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.
Friday, December 08, 2006
A good summary of the case (and links to the briefs) can be found here.
Thursday, December 07, 2006
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
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
Above the Law also has a solid post up on the current state of the Fourth Circuit and possible replacements for Wilkins.
Sunday, December 03, 2006
Friday, December 01, 2006
The review may be found here.
Thursday, November 30, 2006
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.
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
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
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
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.
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
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
Monday, November 20, 2006
Tuesday, November 14, 2006
South Carolina Supreme Court holds that one assumes the risk of being hit by a puck when attending hockey games
Monday, November 13, 2006
Thursday, November 09, 2006
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
Tuesday, November 07, 2006
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
Friday, November 03, 2006
Thursday, November 02, 2006
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
Insurance Journal has this article.
Tuesday, October 31, 2006
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
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?
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 holds that disbursement of loan proceeds in residential closing is the practice of law
Yet another pitfall for real estate attorneys to avoid.
Monday, October 23, 2006
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.
SCNow.com 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
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
Monday, October 16, 2006
Friday, October 13, 2006
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
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
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
Thursday, October 05, 2006
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
Wednesday, October 04, 2006
Tuesday, October 03, 2006
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
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.
"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
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
Wednesday, September 27, 2006
Tuesday, September 26, 2006
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
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
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
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
Tuesday, September 19, 2006
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.
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
"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
"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
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.
(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
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.
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
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
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
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
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
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
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
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
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
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
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.
Wednesday, August 23, 2006
S.C. Supreme Court promulgates rules providing for appeal of agency decisions to appellate court rather than the circuit courts
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
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.
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
Monday, August 21, 2006
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
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
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.
Tuesday, August 15, 2006
S.C. Supreme Court finds duty of care when person agrees to provide services to a mentally disabled 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
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."
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
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
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
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.
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
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.