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.

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."

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.

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.

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?

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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."