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.

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.

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.

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

Law.com 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.

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. "

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.

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.

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.

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.

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.

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.

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.

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.

Latham and Watkins is the pick this year for SCOTUS clerks

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

Victory for tobacco companies in DC Circuit

From Law.com:

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.

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.