South Carolina County Approves Revoking Licenses to Businesses That Hire Illegals

From Fox News:

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

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

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

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

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

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

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

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

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

Fourth Circuit upholds dismissal under forum-selection clause

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

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

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

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

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

South Carolina Common Sense Consumption Act

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

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

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

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

Fourth Circuit issues sentencing guidelines opinion

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

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

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

According to the article:

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

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

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

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

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

From Law.com:

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

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

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

S.C. Supreme Court issues respondeat superior opinion

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

Frat boys in Borat find no solace in court

From Yahoo news:

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

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

Law firm rates on the rise

Law.com reports that rates are going up again!

Light Blogging this week

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

E-Discovery Rule Amendments

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

SCOTUS arguments on racial balancing in K-12 schools

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

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

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

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

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

Fourth Circuit strikes down sentencing provision of child porn statute

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

Fourth Circuit upholds conviction of SC pain management physician

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

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

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

Charleston law school gains accreditation

Congrats to the Charleston School of Law.

(Hat tip to Laurinline).

Fourth Circuit Vacancies

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

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

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

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

Who will be South Carolina's next federal judge?

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

Steve Matthews

Bill Coates

Both would make fine judges.

Review of Reclaiming the American Revolution

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

The review may be found here.

Possible Candidate to Take Judge Wilkins' Seat

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