Tuesday, January 31, 2006

S.C. Court of appeals holds that trial judge is not required to impose sanctions with a contempt finding

In Lukich v. Lukich, a family court matter, Wife argued that although the family court ruled Husband was "technically in contempt for failure to make support payments as ordered," the ruling was tantamount to finding Husband was not in contempt because the court did not require Husband to comply with the temporary order pending the outcome of his motion to vacate that order and because no sanctions were imposed.

The Court of Appeals rejected the argument of Wife, holding that the family court properly declined to impose sanctions against Husband because the validity of his alimony obligation was in question and Husband had a pending motion to vacate the alimony award. The Court of Appeals concluded that
"Because there is no requirement that sanctions be imposed upon the finding of contempt, we find no abuse of discretion in the family court's ruling. "

Jean Toal urges sentencing reform and urges higher pay for judges

According to The State, Chief Justice Toal made the following remarks on sentencing and judicial pay:

"Sentencing is a national scandal," Supreme Court Chief Justice Jean Toal said during a luncheon meeting at the S.C. Bar’s annual convention. "We simply cannot afford in South Carolina to continue to do what we are doing with the huge burden of prison population, both at the state level and the county level."

. . .

Toal said judicial pay has been a "difficult problem" in the U.S. and "especially" in South Carolina but explained that it should be examined along with the two other branches of government. She said she has assembled a group of business leaders who will "move this issue forward" with private funding.

S.C. trial judges are the most overworked in the nation, Toal said, noting that on average, there are more than 4,000 filings annually per judge, compared to a national average of about 1,700 filings per judge. No additional circuit or family court judges have been added in the state in nearly a decade, she said.

Monday, January 30, 2006

Insight into the wild wild west that is South Carolina Magistrate's Court

Here is a link to an opinion disciplining a magistrate judge in South Carolina. As many of you know, South Carolina has some magistrates who are merely high school graduates. The fact that the Supreme Court has to remind a magistrate judge that a police report is not sufficient to convict is very scary:

The Court emphasizes that while a criminal defendant may plead guilty without any evidence of his guilt being submitted, a defendant who pleads not guilty cannot be convicted solely on the basis of a police incident report. The burden is on the government to prove a defendant's guilt beyond a reasonable doubt based on competent evidence.

My latest working paper on judicial review

For those of you interested, my latest working paper on judicial review and its connection with popular sovereignty can be found here.


Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists' rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction and cannot be classified as precursors to American judicial review. The final section examines the development of judicial review in American state courts both prior to and after ratification of the United States Constitution. This section also examines Marbury v. Madison in the context of these early state court decisions and concludes that Chief Justice Marshall never contemplated setting up the Supreme Court as the final arbiter of our Constitution. A believer in popular sovereignty, Marshall would not have reverted to British practice whereby a branch of government has total control over fundamental law. Instead, the Marbury opinio--like the state decisions before it--simply recognized that the judiciary is a co-equal branch of government empowered to interpret the Constitution along with the executive and the legislature.

Thursday, January 26, 2006

S.C. Court of Appeals issues spoliation of evidence opinion

In Stokes v. Spartanburg Regional Medical Center, the Court of Appeals considered the trial court's failure to give a spoliation of evidence instruction and a resulting verdict in favor of the hospital in this medical malpractice action. During discovery it was learned that a vital signs flow chart and a blood sample were missing. One of plaintiff's requested charges was a "spoliation of evidence" charge, which allowed jurors to draw a negative inference if it found the Hospital's explanation regarding the missing records unsatisfactory. The trial judge agreed to the charge, and the Hospital did not object. However, when it came time to charge the jury, the trial judge failed to give the "spoliation of evidence" instruction. Plaintiff objected, but the court overruled the objection, explaining: "That charge I have some problems with this."

The Court of Appeals concluded that the trial court erred, remanded for a new trial, and indicated that the following language would be appropriate for a spoliation charge in South Carolina:

I charge you that when a party fails to preserve material evidence for trial, it is for you to determine whether the party has offered a satisfactory explanation for that failure. If you find the explanation unsatisfactory, you are permitted--but not required--to draw the inference that the evidence would have been unfavorable to the party's claim.

Forty indicted in upstate meth bust

According to WLTX:

State Attorney General Henry McMaster says 40 people are being indicted in South Carolina's largest methamphetamine bust ever. McMaster says state and local law enforcement officials conducted surprise raids in the Upstate Sunday and took some indicted defendants into custody. Ninety-two charges have been filed, ranging from trafficking in meth, marijuana and cocaine to failure to stop for a blue light.

Wednesday, January 25, 2006

Fourth Circuit holds summary judgment for the employer was proper even if plaintiff offered proof of age discrimination

On January 20 the United States Court of Appeals for the Fourth Circuit issued a decision in favor of the VA in Baquir v. Principi, Secretary, Department of Veterans Affairs, an employment discrimination matter. The plaintiff, Dr. Riaz Baquir alleged age, race, national origin and religious discrimination on the part of his former employer, the VA Medical Center in Asheville, North Carolina, arising out of the termination of his employment as a cardiologist. The Fourth Circuit, which affirmed the district court's award of summary judgment in favor of the VA, did not stray from its prior rulings with regard to Dr. Baquir's Title VII claims. According to the Court, Dr. Baquir did not present evidence that he was performing his job duties a level that met the VA's legitimate expectations because he was not able to work independently, without further training, as a interventional cardiologist. In so finding the Court stated that VA's assessment of Dr. Baquir's capabilities was not one it was inclined to impugn.

What is of particular note in this decision is the Court's dismissal of Dr. Baquir's cause of action for age discrimination. Dr. Baquir submitted direct evidence of age discrimination on the part of a decision-maker who allegedly stated that age was the major and only factor for his termination and that interventional cardiology was meant to be done by people in their thirties. Despite this evidence, which must be interpreted in the light most favorable to Dr. Baquir at the summary judgment stage, the Court summarily determined that the VA was not liable under a mixed motive analysis because although age was a motivating factor in his discharge the VA could demonstrate that it would have terminated Dr. Baquir even in the absence of discrimination. The Court's holding in this regard was premised on its finding that the VA presented unrequited evidence that Dr. Baquir could not perform his duties at a level that met the VA's legitimate expectations. In his lone dissent, Judge Gregory took issue with the majority's reasoning stating that it was not viable because Dr. Baquir had presented not only direct evidence of discriminatory animus, but also evidence that the discriminatory animus was the "sole motive" for his termination.

(contributed by Sandi R. Wilson)

Tuesday, January 24, 2006

S.C. Education Oversight Committee avoids decision on evolution issue

This is an issue that court spark litigation in South Carolina, but teachers are demanding guidance. According to The State:

High school biology teachers are in limbo today on how to approach
origin-of-life lessons this fall.

An Education Oversight Committee panel took no stand Monday on whether to include new language that would allow theories other than evolution to be taught--which could include creationism or intelligent design.

Monday, January 23, 2006

SCOTUS issues sovereign immunity opinion on the Bankruptcy Clause

In Central Virginia Community College v. Katz, the High Court considered whether a proceeding initiated by a bankruptcy trustee to set aside preferential transfers by the debtor to state agencies is barred by sovereign immunity. The Court held that sovereign immunity is no bar because the Bankruptcy Clause reflects the States desire "to subordinate to the pressing goal of harmonizing bankruptcy law sovereign immunity defenses that might have been asserted in bankruptcy proceedings."

In so holding, the Court noted that the decision appeared to go against prior precedent:

We acknowledge that statements in both the majority and the dissenting opinions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), reflected an assumption that the holding in that case would apply to the Bankruptcy Clause. See also Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 105 (1989) (O'CONNOR, J., concurring). Careful study and reflection have convinced us, however, that that assumption was erroneous. For the reasons stated by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.

Justice Thomas entered a very forceful dissent:

Nothing in the history of the Bankruptcy Clause suggests that, by including that clause in Article I, the founding generation intended to waive the latter aspect of sovereignty. These two attributes of sovereignty often do not run togethe--and for purposes of enacting a uniform law of bankruptcy, they need not run together.

For example, Article I also empowers Congress to regulate interstate commerce and to protect copyrights and patents. These provisions, no less than the Bankruptcy Clause, were motivated by the Framers' desire for nationally uniform legislation. See James Madison, Preface to Debates in the Convention of 1787, reprinted in 3 M. Farrand, Records of the Federal Convention of 1787, pp. 539, 547-548 (1911) (hereinafter Farrand's Debates) (noting lack of national regulation of commerce and uniform bankruptcy law as defects under the Articles of Confederation); M. Farrand, The Framing of the Constitution of the United States 48 (1913) (noting that the Articles of Confederation failed to provide for uniform national regulation of naturalization, bankruptcy, copyrights, and patents). Thus, we have recognized that "[t]he need for uniformity in the construction of patent law is undoubtedly important." Florida Prepaid, 527 U. S., at 645. Nonetheless, we have refused, in addressing patent law, to give the need for uniformity the weight the majority today assigns it in the context of bankruptcy, instead recognizing that this need 'is a factor which belongs to the Article I patent-power calculus, rather than to any determination of whether a state plea of sovereign immunity deprives a patentee of property without due process of law." Ibid.

S.C. Bar considers posting disciplinary action on the web

Next week the South Carolina Bar is considering a resolution to post attorney disciplinary action on its web site "with the exception of interim suspensions and administrative suspensions, the information, once posted, shall remain on the web site in perpetuity."

The Post and Courier has this article.

Sunday, January 22, 2006

SCOTUS holds that national banks are citizens of states where their office is located

Lots of attention has been paid to the assisted suicide case decided last week. However, a day after that case SCOTUS decided a major case dealing with federal-court diversity jurisdiction. The case is styled Wachovia Bank v. Schmidt.

The suit began when citizens of South Carolina sued Wachovia in a South Carolina state court for fraudulently inducing them to participate in an illegitimate tax shelter. Shortly thereafter, Wachovia filed a petition in the United States District Court for the District of South Carolina, seeking to compel arbitration of the dispute. As the sole basis for federal-court jurisdiction, Wachovia alleged the parties' diverse citizenship. The District Court denied Wachovia's petition on the merits; neither the parties nor the court questioned the existence of federal subject-matter jurisdiction. On appeal, a divided Fourth Circuit panel determined that the District Court lacked diversity jurisdiction over the action; it therefore vacated the judgmentand instructed the District Court to dismiss the case. In the Fourth Circuit, a panel essentially held that for purposes of federal-court diversity jurisdiction, a national bank is a citizen of every State in which it has established a branch. Hence, Wachovia could not claim that it was a citizen of North Carolina when it had myriad offices in South Carolina.

SCOTUS reversed, holding that

a national bank, for section 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located. Were we to hold, as the Court of Appeals did, that a national bank is additionally a citizen of every State in which it has established a branch, the access of a federally chartered bank to a federal forum would be drastically curtailed in comparison to the access afforded state banks and other state-incorporated entities. Congress, we are satisfied, created no such anomaly.

Thursday, January 19, 2006

S.C. Court of Appeals holds in real estate case that a misrepresentation without damages is not actionable

In Schnellmann v. Roettger, the Schnellmans sued the Roettger misrepresenting in the listing that the home they eventually bought was over 3000 square feet when it was really 2987 square feet. The Court of Appeals affirmed the trial court's grant of summary judgment on the ground that there was no damage. The home appraised for more than the Schnellmans paid for it and therefore they were not harmed by the square footage misrepresentation.

Wednesday, January 18, 2006

Supreme Court upholds Oregon assisted suicide law

The Supreme Court on Tuesday voted 6-3 to uphold an Oregon physician-assisted suicide law in the case Gonzales v. Oregon, ruling that former Attorney General John Ashcroft overstepped his authority in seeking to punish doctors who prescribed drugs to help terminally ill patients end their lives.

SCOTUS Blog has this post on the opinion.

Here is the take at Southern Appeal.

Text of Governor Sanford's State of the State Address

The text of the State of the State address can be found here.

These remarks indicate that the Governor accepts Judge Cooper's ruling in the school funding case:

First, given Judge Cooper's recent decision, let's take a complete inventory of what, where and how we spend money in early childhood education. I have long been a proponent of early childhood education, but that does not mean I believe in attempting to be all things to all people on this front. In this vein, let's use the private sector's capacity, let's focus the finite resources we have in this state to the programs that produce the best outcomes --and let's direct them toward the people for whom it will make the biggest difference. I think we need to do these things before going to the taxpayer asking for more money.

Tuesday, January 17, 2006

Fourth Circuit reverses lenient sentence because district judge did not take into account the Sentencing Guidelines

In United States v. Clark, Clark was convicted in federal court for the federal crime of conspiring to distribute crack cocaine. The Guidelines provided that she be sentenced to between 46 and 57 months. The district court sentenced Clark to eight months because Clark would have received a much lower sentence for a comparable state crime in Virginia.

The Fourth Circuit vacated the sentence and remanded because the district court either failed to consider or considered improperly the need to avoid unwarranted sentencing disparities
among federal defendants as required by 18 U.S.C. section 3553(a)(6).

The Fourth Circuit described the district court's folly as this:

Believing itself free to do so because the Sentencing Guidelines are no longer mandatory, the district court simply resorted to state law for additional insight as to what would constitute a reasonable sentence under the circumstances, wholly without regard for whether the sentence thereby mposed would result in sentencing disparities.

Hence, the Fourth Circuit has reaffirmed that even though the Guidelines are not mandatory, district judges should pay close attention to the ranges.

Monday, January 16, 2006

Judge Duffy reverses bankruptcy judge in confederate letters case

Last August, federal bankruptcy Judge John Waites ruled that a collection of rare, Civil War-era letters belonged to the state and not Thomas Willcox. Willcox tried to auction off more than 400 letters he has had in his family for generations. Willcox filed for bankruptcy soon after. Many of the letters are correspondence between generals or the Confederate government and South Carolina Governors Francis Pickens and Milledge Bonham during the Civil War. Three are written by Confederate General Robert E. Lee. Judge Waites ruled that the letters deal with the official duties of the governor and therefore were public records.

My post on Judge Waites' decision along with links to other sources can be found here.

Now, U.S. District Judge Patrick Duffy has reversed the bankruptcy judge, holding that "the court finds no persuasive evidence to support the state's contention that, prior to 1865, the records of the state executive branch were considered public records."

The AP has this report on Judge Duffy's ruling.

My guess is that this one will soon be off to Richmond.

S.C. Death Penalty case will likely be heard by SCOTUS

In arguments scheduled for February 22 (Holmes v. South Carolina), the High Court will review the South Carolina standard, which requires a reasonable inference of innocence, before a criminal defendant can point the finger at another person.

Holmes wants to introduce statements from another other man and witnesses who claim to have seen the other man the night of the killing. The other man has denied in court any role or knowledge of the crime, and his DNA did not match the DNA collected by police that links Holmes to Stewart. Holmes alleges that the trial jury should have heard this evidence which was ruled out by the judge.

An article on the Holmes case can be found here.

Friday, January 13, 2006

Fourth Circuit declines to extend Bivens to employees of private prison

In Holly v. Scott, the Fourth Circuit granted interlocutory review to decide whether individual employees of a privately operated prison face Eighth Amendment liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for allegedly providing inadequate medical care to a federal inmate. The panel held that Bivens should not be extended. According to the court:

an inmate in a privately run federal correctional facility does not require a Bivens cause of action where state law provides him with an effective remedy. See Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1103 (10th Cir. 2005). Holly already enjoys claims that an inmate in a government-run facility would not have. In requesting that we also grant him a Bivens claim--indeed, that we grant him a superior one in which qualified immunity is unavailable--Holly seeks much more than is necessary to remedy his alleged injuries. This is not a circumstance under which the extension of a judicially implied remedy is appropriate.

Thursday, January 12, 2006

S.C. Court of Appeals issues election of remedies opinion

In Tomlinson v. Mixon, the Tomlinsons recovered damages on claims of breach of contract and negligent misrepresentation. The recoveries were based on the same set of facts. The Court of Appeals held that to avoid a double recovery, the Tomlinsons should elect on remand which one of the two claims they wish to recover their damages upon.

Wednesday, January 11, 2006

S.C. teens sentenced for lynching

CNN has this report.

Howard Bashman on Alito

Howard Bashman from How Appealing has an essay up on Law.com about Judge Alito. Bashman has appeared before the Third Circuit many times and has much experience with Judge Alito. Bashman ends the op-ed with this:

Alito appears poised to achieve Senate confirmation by a comfortable margin later this month, and his voting record on the Supreme Court over time likely will place him nearer to Chief Justice Roberts than to Justices Scalia and Thomas. Meanwhile, back in the 3rd Circuit, we will miss Alito, even as we celebrate his ascension to the highest court in the land. By 2010, Alito would have become the 3rd Circuit's chief judge. Instead, he will have to settle for being the first 3rd Circuit judge to serve on the U.S. Supreme Court.

Quotes from first day of Alito hearings

CNN Law has a good collection of Alito quotes from the first day.

Here is my favorite so far:

I don't think that foreign law is helpful in interpreting the Constitution.
Our Constitution does two basic things: It sets out the structure of our
government and it protects fundamental rights.

The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful. ...

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. Our country has been the leader in protecting individual rights. ... We have our own law. We have our own traditions. ...

Fourth Circuit issues opinion on nighttime search warrants

In United States v. Rizzi, the Fourth Circuit considered the issue of nighttime searches in connection with drug trafficking. During a nighttime search, officers seized firearms and a federal grand jury thereafter indicted Rizzi for being a felon in possession of firearms. On Rizzi's motion, the district court suppressed the seized evidence, concluding that the nighttime execution of the warrant violated Federal Rule of Criminal Procedure 41(e)(2)(B) because the officers did not attempt to demonstrate, and the authorizing judicial officer did not determine, that "good cause" existed for a nighttime search.

The district court rejected the government's argument that 21 U.S.C. section 879, which specifically authorizes the nighttime execution of a search warrant involving controlled substances, governs, rather than Rule 41(e). The Fourth Circuit reversed the district court, holding that because 21 U.S.C. section 879 provides a specific authorization for circumstances presented in the Rizzi case, it governs rather than the Rule of Criminal Procedure.

The crux of the holding is this:

At bottom, we hold that when a search warrant involves violations of drug crimes, the warrant can be served day or night so long as the warrant itself is supported by probable cause. And to the extent that section 879 might be found to conflict with the general requirement of showing good cause for nighttime searches contained in Rule 41(e), we hold that section 879 applies exclusively.

Fourth Circuit holds that elimination of bodily waste is a major life activity under the ADA

In Heiko v. Colombo Savings Bank, Heiko alleged a failure to promote and constructive discharge on the basis of disability because at the time of the alleged discrimination, Heiko suffered from end-stage renal disease and thus spent three afternoons per week attached to a dialysis machine that removed toxins from his blood. The district court ruled that Heiko was not disabled under the ADA because the elimination of bodily waste was not a "major life activity."

The Fourth Circuit reversed the grant of summary judgment and held that elimination of bodily waste is a "major life activity" within the meaning of the ADA.

Tuesday, January 10, 2006

Day One Wrap Up: Alito Answers Senators' Questions

The AP has a nice summary with links to video of today's testimony by Judge Alito and Grandstanding by the Judiciary Committee.

Alito opening statements

The Washington Post has these helpful links to the opening statements of the judiciary committee and the opening statement of Judge Alito.

Townhall also has a section up with many links on the Alito nomination.

Motions to reconsider filed in school funding case

Both the state and school districts have filed motions to reconsider in the school funding litigation. Both sides are still considering an appeal.

The Times-Democrat has this article.

Monday, January 09, 2006

Fourth Circuit issues arbitration opinion holding that judicial intervention on number of arbitrators to use is improper

In a very pro-arbitration ruling (DOCKSER v. SCHWARTZBERG), the Fourth Circuit declined to intervene in a dispute concerning the number of arbitrators to use in a dispute. In Dockser, the Plaintiffs did not contest that they are contractually bound to arbitrate the merits of their dispute, but sought to litigate whether one arbitrator, rather than three, should preside over the arbitration.

The Fourth Circuit held that judicial intervention on this issue would be inappropriate:

The parties have agreed that arbitrator selection should follow the rules and procedures of the American Arbitration Association, and the number of arbitrators is a procedural question to be answered exclusively in that forum. The FAA promotes the efficient resolution of disputes through arbitration, and this goal would be undermined if we were to allow arbitration proceedings to be stalled or nullified by ancillary litigation on minor issues of this type. We accordingly affirm the judgment of the district court dismissing plaintiffs' complaint.

Today is the deadline to file an appeal in the school funding litigation

Here is a previous post on the decision which contains a link to Judge Cooper's Order.

33 USC Law Professors urge that the law school close its doors to military recruiters

Bobby Harrell of the Charleston Post and Courier has an op-ed up on the Solomon Amendment and efforts of the USC Law School faculty to ban military recruiters. Harrell wonders "what would happen if USC's law school campus were being attacked by al-Qaida. Would they keep the same closed-door policy?"

An interesting question.

The Solomon Amendment is a federal statute that withholds specified federal funds from institutions of higher education that deny military recruiters the same access to their campuses and students that they provide to other recruiters.

Friday, January 06, 2006

What to expect from the Alito hearings

The Guardian has this article on what to expect when the Alito hearings begin.

For those of you interested in what are appropriate questions for the nominee, SCOTUS Blog has this excellent post.

Attorneys and law makers to discuss school funding decision

According to The State:

The attorneys on both sides of South Carolina's school funding lawsuit will participate in a panel discussion on the ruling Friday.

ETV Reports will take an in-depth look at Judge Thomas W. Cooper Jr.'s ruling on Abbeville County School District v. The State of South Carolina.

Beryl Dakers will moderate the discussion with the lawyers, legislators, and state and community leaders.

It will air at 7 p.m. tonight and again at 2 p.m. Sunday.

Thursday, January 05, 2006

SCOTUS approves transfer of Padilla

The Supreme Court has approved the transfer of Jose Padilla from military custody to the custody of the warden of a federal detention center in Florida, to face criminal charges contained in an indictment filed November 17, 2005. The government has held Padilla as an enemy combatant since 2003.

Padilla was originally accused, but never charged, with plotting to set off a "dirty bomb," or crude radioactive device, in the United States. Padilla was indicted in November on charges of conspiring to murder U.S. citizens and to provide material support to terrorists. His trial is scheduled to begin in September.

CNN has this article.

UPDATE: The interesting question is whether this transfer now moots his pending challenge to the administration's enemy combatant policies. Eric Muller of Is That Legal? offers this post arguing that the case is mooted.

Wednesday, January 04, 2006

S.C. Supreme Court issues opinion on timeliness of an appeal

In Upchurch v. Upchurch, the Supreme Court reversed the Court of Appeals on the issue of when an appeal is timely filed. At issue was a family court order signed on May 30, 2002. The following day, the court's administrative assistant mailed the original signed order to the clerk of court with a letter requesting that the clerk file the order and send certified copies to the attorneys of record. This letter, including copies of the signed order, was carbon copied to both attorneys of record. The order was not filed until June 12, 2002. Wife did not receive service of the filed order until August 23, 2002, and on September 11, 2002, Wife appealed.

The Court of Appeals held that the appeal was untimely. The time to appeal starts to tick once a party receives written notice of the entry of the order. The court of appeals thought that the May 31 letter was notice, but the supreme court disagreed. According to the court:

we hold that the time to file a notice of appeal pursuant to Rule 203(b), SCACR, begins to run when written notice that the order has been entered into the record by the clerk of court has been received. Therefore, the May 31st letter from the judge's assistant was not notice of entry of judgment; the very language of the letter indicated that the order had not yet been filed. Accordingly, the court of appeals erred in dismissing the appeal as untimely.

Tuesday, January 03, 2006

S.C. Supreme Court issues opinion on meaningful offer of UIM coverage

In Flloyd v. Nationwide, the Supreme Court answered the following certified question:

Is an offer form in which the blanks were filled in by an insurance agent or his employee in the presence of the named insured, and the form was then signed by the named insured, properly completed and executed pursuant to S.C. Code Ann. 38-77-350(B) (2002), such that the form may be conclusively presumed to constitute a meaningful offer of UIM coverage?

The Court answered the question in the negative:

We conclude the Legislature intended, by the plain and unambiguous terms of the statute, for the insured herself to personally mark, select, and sign the UIM offer form pursuant to Section 38-77-350(A). The offer form is not "properly completed and executed by the named insured" -- thus triggering the conclusive statutory presumption a meaningful offer was made pursuant to Section 38-77-350(B) -- unless the insured herself personally marks, selects, and signs the form.

S.C. Supreme Court issues decision on interlocutory appeals

In BB&T v. Pender, the Supreme Court held that an order quashing a subpoena duces tecum is not immediately appealable.

The Court further held that under Rule 69, SCRCP, the rule requires a writ of execution be issued or supplementary proceedings initiated before discovery may be commenced.

Presidential discretion and Padilla

The Toledo Blade offers this op-ed on the Fourth Circuits recent Padilla decision,

Monday, January 02, 2006

Constitutional amendment on mini-bottles goes into effect

For 22 years, South Carolina law required bartenders to use the tiny 1.7-ounce bottles most often associated with airplanes and hotel minibars. Then, last year, South Carolinians voted the minibottles out, and lawmakers followed through earlier this year by approving regulations to give bars and restaurants the choice to pour from the big bottles starting Jan. 1. Hence, the New Year started off as free pour.

The AP has this article.

Education activists are unsure if Judge Cooper's order is a victory

Blackenterprise.com has this story on the reaction to Judge Cooper's Order in the school funding case.

Possible public-private partnership to fulfill judge's school funding order

Education Superintendent Inez Tenenbaum said she is considering several options to fulfill Judge Thomas W. Cooper Jr.'s ruling, including a public-private kindergarten partnership that could cost up to $100 million.

The Greenville News has this article.

For a discussion of Judge Cooper's order, see this post.