Plaintiff's case-in-chief in Wal-mart sex offender trial scheduled to end today

As I posted last week, in Richland County Wal-mart is being sued for the negligent hiring of a sex offender. Yesterday, experts testified that Wal-mart should have rejected the job application of the sex offender because it was incomplete. The Plaintiff should finish her case today.

What really might get the jury mad in this one is that allegedly Wal-mart did not respond to the parents of the child involved once the incident was reported.

General Assembly: Don't you have anything better to do?

Republican Representative Ralph Davenport of Boiling Springs has proposed a bill that would make it a felony to sell devices used primarily for sexual stimulation. That's right, he wants to make sex toys illegal.

Glad we don't have any real problems in South Carolina: for example: education, criminal domestic violence, conservation, etc. Hence, the General Assembly has time to think about those evil sex toys.

Unbelievable.

SCOTUS issues due process opinion on tax sales

In Jones v. Flowers, SCOTUS dealt with a notice of tax sale that was mailed to the owner and returned undelivered. In this situation, according to the Court, the government must take additional reasonable steps to provide notice before taking the owner's property. According to the Court, reasonable steps the government should take to satisfy due process include:

• Resending the letter by regular mail: "Following up with regular mail might also increase the chances of actual notice to Jones if it turned out he had moved. "
• To post notice on the front door, or to address otherwise undeliverable mail to occupant.

The rationale behind the opinion is summed up as follows:

There is no reason to suppose that the State will ever be
less than fully zealous in its efforts to secure the tax revenue
it needs. The same cannot be said for the State's
efforts to ensure that its citizens receive proper notice
before the State takes action against them. In this case,
the State is exerting extraordinary power against a property
owner--taking and selling a house he owns. It is not
too much to insist that the State do a bit more to
attempt to let him know about it when the notice letter addressed
to him is returned unclaimed.

Fourth Circuit issues Terry Stop Opinion

In United States v. McQueen, the criminal defendant challenged the lawfulness of an initial stop that resulted in the discovery of a firearm in his car. (After the initial stop, McQueen consented to the search of this automobile). McQueen was a felon in possession. The Fourth Circuit held that the stop was lawful:

We do not believe that the initial stop was unlawful because there was sufficient evidence to give rise to a reasonable suspicion that illegal activity was afoot. A reliable informant phoned in a tip about a suspicious car in a bar parking lot. G.S.A. 6. From a distance, the officers observed an unconscious man in the driver's seat of the car. Id. They could also see that the rear bumper of the car was bashed in and that the car was running at idle. Id. at 6, 21. The car had out-of-state license plates, id. at 22-23, and was parked in an area known for drug and gang activity, id. at 14-15, 37. Under these circumstances, the officers, in light of their experience, could have reasonably suspected that McQueen, among other things, either had been or was about to drive drunk or that McQueen had hit a car and driven away. In light of these circumstances, the district court was correct to conclude that the officers had the reasonable suspicion necessary for the Terry stop. Therefore, McQueen's consent to search his car was effective and the district court did not err in refusing to suppress the handgun.

Fourth Circuit holds state court claims arising before arbitration agreement were not subject to arbitration clause

In WACHOVIA BANK v. SCHMIDT, the Fourth Circuit upheld an order of the district denying Wachovia's motion for arbitration of certain state-law claims. The claims concerned an investment scheme in which Schmidt participated in at the behest of Wachovia. The Note involved contained an arbitration clause providing that either party could compel arbitration of "any claim or controversy arising out of, or relating to" the Note or other documents executed in connection with the loan. Because the Schmidt's state-court claims derived solely from actions Wachovia took as a financial advisor to induce Schmidt to participate in the investments and the events giving rise to these claims occurred before the Note was even executed, the Fourth Circuit held that the state-court claims were not significantly related to the Note. Hence, arbitration would not be the correct forum.

Death penalty for South Carolina sex offenders

CNN has an article up on how "Uncle Kenny's dungeon" has inspired state lawmakers to expand the scope of the death penalty. Two 17-year-old girls fled Uncle Kenny's property last month, saying he had taken them from a home, bound their mouths and wrists with duct tape and raped them in a shallow dungeon under a trapdoor in his tool shed. Uncle Kenny was captured March 17 after a four-day manhunt.

S.C. Court of Appeals finds no error in denial of motion to sever the charges or murder and trafficking

In State v. Rice, two separate indictments were issued against Rice. The first was for trafficking in cocaine, the second for murder. The trial court refused the sever the charges and the court of appeals affirmed.

The cocaine trafficking charge arose out of a traffic stop the police set up because they suspected Rice of Johnson's murder. The police found the gun believed to be the murder weapon in the same search that produced the cocaine that forms the basis of the cocaine trafficking charge. The State surmised Rice's motive for murdering Johnson was in part to retrieve the cocaine and money Johnson stole from Rice's car. When the police arrested Rice at the traffic stop, he was found with large amounts of cocaine and money. Moreover, the testimony at trial revealed the relationship between Rice and Johnson was largely based on selling drugs. The State's theory as to the motive for Johnson's murder involved the drugs Johnson stole from Rice when he stole Rice's car as well as the drug-related argument the two recently had involving the marijuana. Hence, the relationship between the two charges counseled against severing them.

S.C. Court of Appeals holds that 24 years is too long to wait to enforce award of alimony

In Kelley v. Kelley, the family court found Wife’s delay in seeking to enforce award of alimony was unreasonable. It was undisputed that there has been at least a twenty-four year delay from the original divorce order to the present action. Alimony was awarded to Wife in the 1974 divorce decree, reiterated in a 1977 order, and the present action was not commenced until 2001. Although Wife received an order in 1978 holding Husband in contempt, she admittedly never served Husband or his counsel. Despite seeing Husband at numerous gatherings over the years, including the weddings of both sons, Wife failed to have Husband served with the order.

Nightclub with inadequate foods sales appeals revocation of liquor license

Only in South Carolina would regulations about the sale of liquor be enshrined in the state constitution. Liquor licenses for on-premises consumption, according to the state constitution, can only be given to three groups: hotels and lodging businesses, nonprofit groups operating private clubs and restaurants. Nightclubs have to pretend to be restaurants and serve food on premises. But to be a restaurant a club must gain substantial revenue from food sales.

At Revolutions, the club that lost its license, food sales accounted for less than 10 percent of revenue. The appeal concerns what a substantial amount means.

This case is another example of the mess that is our constitution. Fundamental law should not regulate such things as the sale of booze. South Carolinians need to clean up the constitution.

Circuit Judge J.C. Nicholson hears treasure trove case

This sounds like a fun case to be involved in:

Attorneys argued Wednesday whether a lawsuit stemming from the discovery of a Civil War-era steamer and its treasure trove should be heard in South Carolina.

$75 million in gold and artifacts were recovered from the SS Republic, which was discovered in 2003 off the Southeast coast.

The steamer was traveling from New York to New Orleans when it sank in a hurricane on October 25th, 1865.

The lawsuit alleges Florida-based Odyssey Marine Exploration found the vessel using information a South Carolina shipwreck hunter provided.

But the plaintiffs say neither the treasure nor the credit for finding the wreck was shared.

Fourth Circuit decides Microsoft suit

A panel of the Fourth Circuit has ruled that consumers who purchased Microsoft software indirectly cannot sue the software company in federal court for claims related to the U.S. Department of Justice' antitrust suit. The opinion in Kloth v. Microsoft Corp. dismissed all claims in a federal suit that attempted to create a nationwide class of people who purchased Windows, Word and other Microsoft software during the 1990s but did not buy it directly from Microsoft.

Wal-mart sex-offender suit starts next week

Beginning Monday, the family of a Columbia girl who was molested by a Wal-Mart employee and repeat sex offender will call its first witness in a negligent hiring action against Wal-mart.

Fourth Circuit issues statutory mootness decision

In In re Rare Earth Minerals, the Fourth Circuit considered the "statutory mootness" of an appeal challenging a bankruptcy court's authorization of the assumption and sale of an oil and gas lease. Under Section 363(m) of the Bankruptcy Code, appellate courts are restricted from undoing to the authorized sale of estate assets to a good faith purchaser unless the sale has been stayed pending appeal. Because the Plaintiff failed to obtain such a stay, the Fourth Circuit affirmed the district court's dismissal of the appeal as moot.

Nominees to fill the at-large circuit court judgeship are announced

A judicial screening panel has nominated three black candidates to fill the at-large Circuit Court judgeship vacated by U.S. Attorney Reggie Lloyd. The three nominees are: Michelle Childs, a state Workers' Compensation commissioner since 2002; John Geathers, an Administrative Law Court judge since 1994; and William Witherspoon, an assistant U.S. attorney since 2000.

SCOTUS hears arguments in Title VII retaliation case

How harsh does the employer's retaliation have to be before it violates the law? That is the question SCOTUS heard arguments on yesterday. The Washington Post has this article on the case.

South Carolina Bar finds that all six candidates for the circuit judge seat are qualified

According to WIS-TV:

All candidates to fill the Circuit Court judgeship formerly held by new US Attorney Reggie Lloyd have been certified by the South Carolina Bar as qualified for the post.

That includes long-time York County prosecutor Dan Hall who is the only white candidate to replace Lloyd. Lloyd was one of only a handful of black state judges.

The next step for all six candidates is screening by the Legislature's Judicial Merit Selection Commission that should recommend three people to the General Assembly for a vote later this year.

The other candidates for Lloyd's at-large seat are Debra Gammons of Greenville, and Columbia residents Michelle Childs, John Geathers, Joseph Strickland and William Witherspoon

S.C. Court of Appeals holds that there is no private right of action for the unauthorized practice of law

In Hambrick v. Ditech, the Court of Appeals upheld the circuit court's finding that the Hambricks's claims against Ditech all stemmed from the allegation that Ditech was engaged in the unauthorized practice of law and the circuit court's conclusion that it lacked jurisdiction to hear the case. In affirming the circuit court, the Court of Appeals emphasized that no private right of action exists for the unauthorized practice of law and that only the Supreme Court can make determinations of what is the unauthorized practice of law.

S.C. Attorney General completes price gouging investigation

As a result of the investigation, several South Carolina gas stations agreed to pay $500 each to a Hurricane Katrina relief fund after a state investigation into price gouging allegations. The investigation found the stations charged an average of $4.59 per gallon for regular unleaded gasoline without "sufficient explanation," Attorney General McMaster told AP. The investigation was pursuant to the South Carolina Unfair Trade Practices Act.

Lawsuit challenging appointment of Carmen Tevis Mullen has been dismissed

According to the AP:

The lawsuit, filed in February by Hilton Head Island lawyer Jim Herring and the South Carolina Public Interest Foundation, alleges the Judicial Merit Selection Commission failed to properly screen Mullen. The lawsuit claims she was nominated to replace Judge Jackson Gregory despite concerns about whether she actually lived and worked in the circuit. Judge Kinard dismissed the case and held that it should have been filed in the original jurisdiction of the South Carolina Supreme Court.

. . .

James Carpenter, the attorney representing Herring and the foundation, said he thinks he will be able to file the case with the Supreme Court before the swearing-in this summer.

SCOTUS allows citation of unpublished opinions

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec 1.

S.C. Supreme Court holds that "lost volume seller doctrine" does not eliminate duty to mitigate

In Collins Entertainment v. Coats & Coats, the Supreme Court considered whether the lost volume seller doctrine eliminates the duty to mitigate damages. Under this doctrine, "if the injured party could and would have entered into the subsequent contract, even if the contract had not been broken, and could have had the benefit of both, he can be said to have lost volume and the subsequent transaction is not a substitute for the broken contract."

In this case, the Court held that the lost volume seller doctrine does not eliminate a seller's duty to mitigate his damages. The doctrine simply recognizes that, in situations in which the seller has excess capacity and would, in any event, have made both sales, the lost volume measure of damages is necessary to place the seller in the same position he would have been had the buyer not repudiated.

S.C. Supreme Court holds that guardian ad litems are not typically public figures in defamation cases

In Erikson v. Jones Street Publishers, the Supreme Court issued an opinion on various facets of defamation law. One of the key holding was that a private citizen serving as a guardian ad litem in family court proceedings is not a public figure and therefore only has to prove by a preponderance of the evidence that the statements made be the newspaper were false and defamatory.

This case provides a nice summary of South Carolina's law of defamation.

Supreme Court upholds prison sentence for fraud on the court

In Brandt v. Gooding, the trial court held the plaintiff in contempt and sentenced him to six months in jail for creating a fraudulent document and presenting that document in deposition. The court upheld the finding of direct contempt. Direct contempt involves contemptuous conduct in the presence of the court, and the Supreme Court held that a deposition is a proceeding and is in the presence of the court even though a judge is not physically present.

Is the third year of law school necessary??

Maybe not. At least according to the Rethinking Law School article appearing in U.S. News. Research also indicates that law students are increasingly disengaged and work less as school progresses. (I could have told them that!).

According to the article, one of the problems is that law schools aren't turning out students who know how to practice law. I'd have to agree with that. You learn about practice serving as a summer associate or a law clerk. What you learn in school has very little to do with private practice.

Also, not surprisingly, the article concludes that the ABA might be a part of the problem rather than the solution.

This is one article that is worth the read.

(Hat tip SW VA Law Blog).

DUI arrests drop

According to The State:

Drunken-driving arrests in South Carolina plummeted 33 percent from 2000 through 2004-- the same period the state had one of the worst alcohol-related fatality rates in the nation.

USC School of Law has a new Dean: Jack Pratt

According to this from WIS, University of Notre Dame law professor Walter "Jack" Pratt will begin at the school on July first.

His bio from Notre Dame can be found here. A copy of his CV is available at this link.

Pratt specializes in legal history and has several publications with the South Carolina Law Review and the University of South Carolina Press.

For those of you interested in his scholarship, here are a couple of links to his books:

The Supreme Court Under Edward Douglass White, 1910-1921

Privacy in Britain

A native of Jackson Mississippi, Professor Pratt joined the faculty of the Notre Dame Law School in 1986 as an associate professor of law and became a full professor in 1998. He earned his B.A. magna cum laude from Vanderbilt University in 1968, as a Rhodes Scholar earned his D.Phil. from Oxford University in 1974, and earned his J.D. from Yale in 1977, where he served as the articles and book review editor for the Yale Law Journal. He is also a member of Phi Beta Kappa. In addition to his teaching responsibilities, he has served as executive associate dean (1999-2005), co-director of the Notre Dame London Law Centre (1988-89), associate dean for academic affairs (1991-98), and faculty advisor to the moot court program (1990-98). He clerked for the Honorable Charles Clark on the U.S. Court of Appeals for the Fifth Circuit (1977-78), and for United States Supreme Court Chief Justice Warren Burger (1978-79). He taught at Duke University as an assistant professor (1979-82) and associate professor of law (1982-86), and held a visiting associate professorship of law at Brigham Young University (1984-85). While on a research leave for the 1998-99 academic year, he studied Irish legal history at the law department of the National University of Ireland, Galway, Ireland.

Fourth Circuit reminds lawyers that they are debt collectors too

In Wilson v. Draper & Goldberg, the Fourth Circuit considered whether attorneys are covered by the Fair Debt Collection Practices Act. In this foreclosure action, a divided panel held that the attorneys were debt collectors under the Act. According to the Court:

Our decision is not intended to bring every law firm engaging in foreclosure proceedings under the ambit of the Act. Nevertheless, it is well-established that the Act applies to lawyers "who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Heintz, 514 U.S. at 299. Congress enacted the Act to "eliminate abusive debt collection practices by debt collectors." 15 U.S.C.A. 1692(e) (West 1998); see also Carroll, 961 F.2d at 460. As such, lawyers who regularly engage in consumer-debt-collection activity should not be allowed to thwart this purpose merely because they proceed in the context of a foreclosure.

Motley Rice achieves settlement in school search and seizure case

Motley Rice LLC obtained federal court preliminary approval of a class settlement with the City of Goose Creek, S.C., the Goose Creek Police Department, the Berkeley County School District and several individuals for allegedly violating approximately 140 students' Fourth Amendment rights during the November 5, 2003, school-authorized search and seizure that involved weapons and police dogs.

The settlement amount is $1.2 million.

Legislative response to school funding order

According to The Sun News:

An Upstate lawmaker wants to change the state constitution allowing the General Assembly, not the courts, to decide how much money South Carolina spends on public education.

Sen. Larry Martin introduced a bill Tuesday that would specify lawmakers alone can make those monetary decisions.

Martin, R-Pickens, thinks the measure would cut short any appeals of an education funding lawsuit. Circuit Judge Thomas Cooper ruled in December the state must fund quality early childhood education to overcome the effect of poverty on children.

Nice work Senator Martin!

Governor Sanford and General Assembly contemplate stronger laws against sex offenders

According to ABC News:

Governor Sanford and Attorney General Henry McMaster are showing support for a bill aimed at protecting the State's children. Jessica's Law was introduced after Jessica Lunsford of Florida was murdered by a registered sex offender. The State's version of Jessica's Law would strengthen the State's sex offender registry by requiring registration several times a year. Predators on probation would be tracked by electronic monitoring devices and offenders convicted twice of sexually assaulting children under the age of 11 could face the death penalty.

USC School of Law offers Notre Dame professor position of Dean

According to The State:

Notre Dame University law professor Walter F. Pratt Jr. has been offered the position of dean of the University of South Carolina School of Law, Pratt confirmed Monday.

Law school faculty members were notified last week that provost Mark Becker had offered the position to Pratt. And its tenured faculty members have been asked to consider an appointment as a tenured professor of law for Pratt.

S.C. Supreme Court rules in ports authority case

In South Carolina State Ports Authority v. Jasper County, the Ports Authority argued it has exclusive authority over maritime port development in South Carolina and filed suit against the county in January 2005 to stop the County from creating a marine terminal on the Savannah River.

The Supreme Court concluded that the County is not preempted from the field of port and terminal development on the Savannah River because the General Assembly has not manifested an intent that no other enactment touch upon the subject. Further, the County has the power and authority to create a county-owned public marine terminal on the Savannah River, and this power is consistent with the Constitution and general law of the State. However, the Court noted that the Ports Authority's right of condemnation is superior to County’s right. Hence, the Ports Authority can swing a bigger stick on this issue even though the County is not excluded from the field.

Fourth Circuit issues opinion on settlement agreement

In Convey Compliance Systems v. 1099 Pro, the Fourth Circuit examines a settlement agreement in which the parties executed a general release of all claims between them, "known or unknown, arising out of any actions or events occurring in whole or part prior to or concurrent with the date" of the settlement. After the release 1099 Pro initiated a proceeding against Convey in the World Intellectual Property Organization to compel Convey to give up an Internet domain name that it had acquired before the settlement, Convey commenced an action for breach of the settlement agreement. 1099 Pro asserted that it was not aware of
the domain name dispute when entering into the settlement agreement and that therefore its claim against Convey was not within the scope of claims intended to be released in the settlement agreement.

The Fourth Circuit held that although 1099 Pro was able to show that it was not aware of any disputes relating to the domain name at the time of the settlement agreement, there was sufficient evidence from which the jury could have concluded that the parties nonetheless intended to foreclose future litigation arising from any action that occurred prior to
their settlements, whether known or unknown.

Hence, the Fourth Circuit affirmed the result that 1099 Pro had breached the agreement.

Alums seek to bring a law school to S.C. State University

Here is an interesting article from the Orangeburg Times Democrat. It details efforts to revive the old law school at SC State University as well as history of the old school as an effort to provide blacks a "separate but equal" legal education.

Memos on reconsideration due in school funding litigation

The State newspaper has this article.