Tuesday, February 28, 2006

S.C. Supreme Court issues opinion in inverse condemnation case

In SCMIRF v. City of Myrtle Beach, the South Carolina Supreme Court considered whether an insurance policy provision covered claims or damages asserted by the class against the City (the damages were essentially refunding monies paid for water service).

The policy expressly provided that liability coverage would not apply "to inverse condemnation, condemnation, temporary taking, permanent taking, or any claim arising out of or in any way connected with the operation of the principles of eminent domain, adverse possession or dedication by adverse use."

In granting judgment to the plaintiffs in the class action and ordering the City to make refunds to the class members, the master concluded that requiring one person to pay another's water bill to obtain service amounted to a "taking of property which violates the United States and the South Carolina Constitutions." Although, the master also cited due process and equal protection as reasons to require the City to pay refunds to the plaintiffs in the class action, the heart of the controversy in that lawsuit was the taking by the City of the class members' money without just compensation.

According to the court, the violation of the class members' rights to due process and equal protection would not have occurred but for the wrongful exercise by the City of its eminent domain power. Hence, the policy exclusion applied.

S.C. Supreme Court issues opinion on contribution actions

In Capco of Summerville v. J.H. Gayle Construction Co., the supreme court considered whether a contribution claim was barred by the statute of repose. The court held that the suit was barred and that this was a situation where a lawsuit is filed on the eve of the running of the statute of repose, is not resolved until after the statute has run, and thus the contribution action is barred before the right has even accrued. The Court noted such a result seemed unfair and called upon the legislature to craft a remedy.

Monday, February 27, 2006

Fourth Circuit restricts district judges on Guidelines issues

In United States v. Eura, the Fourth Circuit held that a district court in the post-Booker world can vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress.

Professor Berman over at Sentencing Law and Policy has this post on the decision.

Surgeon General to Speak at USC Law School

The State has this article on the lecture.

Debate begins in S.C. General Assembly on legislation to protect private property owners from eminent domain abuses

According to The State:

The state's public colleges, utilities and the S.C. Ports Authority would lose much or all of their ability to condemn private property for public benefit under a House bill set to be debated this week.

The measure, sponsored by Rep. Tracy Edge, R-Horry, is aimed at protecting property owners from having their property seized for private development. The push comes in the wake of a U.S. Supreme Court ruling that raised the issue last year.

But as written, the legislation would go much further. Local governments' ability to control growth and development, for example, also would be tested, as the bill would require compensation in some zoning cases.

Friday, February 24, 2006

Fourth Circuit issues Sentencing Guidelines opinion

The Fourth Circuit has once again affirmed that district judges must pay heed to the Sentencing Guidelines when handing out punishment. In United States v. Moreland, Moreland was convicted on two counts of possession with the intent to distribute cocaine base. The district court imposed a sentence of ten years imprisonment--a two-thirds reduction from the bottom of the advisory guideline range. The Fourth Circuit vacated the sentence and reminded district courts that there is a formal analysis they must apply before deviating from the Guidelines:

Thus, in imposing a sentence after Booker, the district court must engage in a multi-step process. First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Next, the court must "determine whether a sentence within that range . . . serves the factors set forth in section 3553(a) and, if not, select a sentence [within statutory limits] that does serve those factors." Green, 2006 WL 267217, at *4. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law. (We will return to this subject momentarily.) If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in section 3553(a), the court may then elect to impose a non-guideline sentence (a "variance sentence"). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. See 18 U.S.C.A. section 3553(c) (West Supp. 2005); Hughes, 401 F.3d at 546 & n.5. The explanation of a variance sentence must be tied to the factors set forth in secton 3553(a) and must be accompanied by findings of fact as necessary. See Green, 2006 WL 267217, at *4-*5.

Thursday, February 23, 2006

South Carolina evidentiary issues argued before SCOTUS

SCOTUS heard arguments about the constitutionality of a South Carolina rule that barred a condemned man from introducing evidence pointing to another possible suspect.

In the case at issue, the South Carolina Supreme Court upheld Holmes' conviction in 2004 and said it was appropriate to exclude evidence suggesting another man was the killer. Its 4-1 decision applied a state standard, developed in two previous South Carolina cases, that said a judge can disallow presentation of evidence against a third party when there's strong evidence against the defendant on trial.

The Mercury News has this article on the arguments before SCOTUS.

The Christian Science Monitor has this article on the case.

The Guardian has this article.

South Carolina Court of Appeals issues opinion on failure to prosecute

In McComas v. Ross, the trial judge dismissed plaintiffs negligence complaint for failure to prosecute. Plaintiffs counsel was notified at 11:00 a.m. that the trial would begin at 2 p.m. Attempts to contact the plaintiff were unsuccessful and she did not arrive at the court house until 4:30 p.m. During the interim, the plaintiff's lawyer had made opening statements and called other witnesses to testify. The trial court dismissed the case for failure to prosecute prior to plaintiff's arrival and the plaintiff appealed.

The Court of Appeals reversed, holding that dismissal was too harsh of a sanction based on the facts and therefore the trial judge abused his discretion.

Monday, February 20, 2006

Fourth Circuit overrules prior precedent on legal effect of decisions of EEOC

On February 16, 2005, the Fourth Circuit issued its opinion in Laber v. Francis J. Harvey, Sec. of the Army, in which it overruled precedent regarding the legal effect of decisions of the Equal Employment Opportunity Commission's Office of Federal Operations (OFO). Prior to the Fourth Circuit's decision in Laber a federal employee who prevailed on a discrimination claim before the OFO on the issue of liability, but was unsatisfied with the OFO's remedy, did not have to put the issue of liability at issue in order to claim entitlement to a more favorable award on appeal to the District Court. In Laber the Fourth Circuit expressly overruled this precedent. It did so on the basis that its prior precedent was inconsistent both with the statutory scheme set forth in Title VII and prior Supreme Court case law. In particular, it noted that the Supreme Court has held that the right of private sector and federal employees to seek de novo consideration of their employment discrimination claims is identical. In the private sector, administrative findings are merely evidence that can be accepted or rejected by the trier of fact. Therefore, holding that federal employees may put at issue only the OFO's remedial award would inappropriately give federal employees greater rights than private sector employees in a civil action.

(Contributed by Sandi R. Wilson)

Damage Caps in South Carolina

Florence Attorney Edward L. Graham has an op-ed in the Florence Morning News discussing the effect of tort reform on medical malpractice actions:

Last year our General Assembly chose to limit a claimant to no more than $350,000 noneconomic damages from a negligent physician, no matter how horrible the harm inflicted. Quadraplegia, brain damage, incontinence, blindness, lifelong pain, loss of limbs, paralysis, severe disfigurement, or loss of fertility, all capped at $350,000 noneconomic damage.

By capping those awards at $350,000, the General Assembly prevented many deserving survivors of malpractice from getting any recovery at all.

Whenever the potential award does not justify the expense and effort of fighting the negligent physician, no experienced lawyer will take the case

Reggie Lloyd confirmed as U.S. Attorney for South Carolina

The State has this article.

Friday, February 17, 2006

S.C. Supreme Court affirms that improperly amended indictment does not go to jurisdiction

In State v. Means, the supreme court overturned a decision by the court of appeals that reversed the conviction of Gerald Means based on a lack of subject matter jurisdiction by the circuit court. The solicitor just prior to trial moved to amend the indictment from criminal domestic violence to criminal domestic violence of a high and aggravated nature. The motion was granted and Means's lawyer stated on the record that they had prepared the case for this higher charge. The court of appeals revered because the indictment was improperly amended. In overturning the court of appeals, the supreme court stated:

An indictment which allegedly is improperly amended no longer raises a question of subject matter jurisdiction; it instead raises a question of whether a defendant properly received notice he would be tried for a particular crime.


"The primary purposes of an indictment are to put the defendant on notice of what he is called upon to answer, i.e., to apprise him of the elements of the offense and to allow him to decide whether to plead guilty or stand trial, and to enable the circuit court to know what judgment to pronounce if the defendant is convicted."

Because the defendant had notice, there was no problem with the conviction.

Thursday, February 16, 2006

Fourth Circuit issues Section 1983 opinion on First Amendment matters (and finds Baltimore Sun reporters are sissies)

In The Baltimore Sun v. Ehrlich, the Fourth Circuit affirmed dismissal of a complaint in a section 1983 case involving First Amendment issues. At base, the press office of Maryland's governor directed the executive department to refrain from speaking with certain reporters because the reporters were not objective enough for the governor. The newspaper and the reporters brought suit under Section 1983 seeking preliminary and permanent injunctions against enforcement of the directive. The Sun alleged that the Governor's directive unconstitutionally retaliated against it for exercising its First Amendment speech and press rights.

The Fourth Circuit affirmed dismissal of the complaint, noting that giving preferential access to some reporters and refusing to give access to or answer the questions of other reporter generally renders the conduct not actionable, and that it would be inconsistent with the journalist's accepted role in the "rough and tumble" political arena to accept that a reporter of ordinary firmness can be chilled by a politician's refusal to comment or answer questions on account of the reporter's previous reporting.

In other words, Judge Niemeyer called the reporters sissies for even bringing this silly complaint.

Fourth Circuit affirms order denying class certification in insurance case; creates split in the circuits

In Thorn v. Jefferson Pilot, a divided panel of the Fourth Circuit affirmed a district court order to deny class certification. The named plaintiffs filed a class-action complaint against Jefferson-Pilot on behalf of themselves and approximately 1.4 million black policyholders. The complaint alleged that Jefferson-Pilot's corporate predecessors discriminated against the class members in violation of federal law by charging them higher premiums than whites for similar insurance policies. The district court denied certification, finding that because it could not resolve Jefferson-Pilot's statute of limitations defense on a class-wide basis, issues common to the class did not predominate over individual ones.

The divided panel affirmed the district court's order denying certification, with Judge Blane Michael dissenting. This creates a split in the circuits and could earn a grant of cert.

Wednesday, February 15, 2006

Is the ABA requiring law schools to break the law with its new diversity requirements??

The ABA has recently moved to require law schools to demonstrate the concrete steps they are taking to ensure that their student bodies, faculties, and staffs are racially and ethnically diverse. The revision requires a stronger and clearer commitment to diversity even from law schools in states, like California and Washington, that ban the consideration of race in admissions.

The ABA recognizes that this new standard is inconsistent with many state laws and has issued this guidance: "The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."

Is this tantamount to the ABA instructing law schools to ignore state statutory and constitutional law?

There is certainly an interesting debate swirling around the blogosphere.

Crime and Federalism has this post.

Southern Appeal has this post.

The Volokh Conspiracy has this post.

Tuesday, February 14, 2006

S.C. Court of Appeals issues opinion on enabling statutes for regulations

In South Carolina Department of Natural Resources v. McDonald, three hunters were convicted of taking game while using bait in violation of regulation 2.9. However, when the Department promulgated Regulation 2.9, it incorrectly cited only South Carolina Code section 50-9-150 as the enabling statutory authority. Section 50-9-150 granted the Department authority to prescribe methods for taking game in wildlife management areas. Although another South Carolina Code section--50-11-31--authorized the Department to regulate deer hunting on land other than wildlife management areas, the Department did not cite this section when it promulgated Regulation 2.9.

In 1996, the General Assembly repealed section 50-9-150 and the hunters argued that the repeal of a statute given as the authority for the promulgation of regulation 2.9 bars a prosecution for a violation of that regulation. The Court of Appeals agreed, notwithstanding the presence of other statutory authority that arguably could have supported the regulation but was not cited when the agency promulgated the regulation.

Monday, February 13, 2006

Growing practice of plaintiffs lawyers taking out loans based on caseload value

From Law.com:

The legal world's equivalent of home equity lenders, they make loans against a firm's caseload or against a trial verdict on appeal -- and they typically charge double-digit interest rates (or double-digit percentages of the attorney's contingency fees). "We advance cash against assets that are hard to get at," says Gary Chodes, the CEO of Oasis Legal Finance Group, a three-year-old company backed by a hedge fund that Chodes declines to name. Chodes says Oasis charges "north of 20 percent" interest, based on its risk and the length of the loan. "We're priced closer to venture capital than a bank loan."

North of 20 percent is on heck-of-a interest rate!

Controversy over South Carolina leaderships PACs

The State newspaper has this report.

Fees in School Funding Suit top $12 million

WIS has this story. The Nelson Mullins firm has not charged its clients, the school districts, for the time that it has worked on this case. Because of the fine work of Nelson Mullins, the judiciary is now setting education policy in South Carolina rather than the legislature. Talk about doing a "public service" ......

Friday, February 10, 2006

My Criminal Domestic Violence Prosecution

As most of you know, I practice in the fields of appellate litigation and health care compliance. A few months ago I was appointed a special prosecutor for the South Carolina Attorney General's Office on a pro bono basis to assist with the state's zero tolerance policy for criminal domestic violence. These are small cases, mostly first offenses, tried in our Magistrate's Courts. Well, today I prosecuted my first case along with Heather Ruth and the Defendant was convicted.

From this experience, I have gained much more respect for those of you practicing on the criminal side of the law. Sure, there is some overlap with issues that arise in civil cases, but prosecuting a case--even a small one--raises rules of evidence that we never think about in a civil case (e.g., character evidence) and a host of other constitutional matters that I had not thought about since law school or my days clerking. Some civil litigators look down on those practicing criminal law. I've never shared that attitude, but today was still an eye-opener.

Without this special prosecutor program, the case today would have been tried by the arresting officers, who have no idea about the rules of evidence or how to conduct a trial. Props to the AG's office for starting this pro bono program and permitting civil litigators to step in and do some good in an overloaded South Carolina justice system.

Thursday, February 09, 2006

Fourth Circuit issues class certification opinion in Microsoft anti-trust litigation

In Deiter v. Microsoft, the Fourth circuit affirmed a district court order certifying a class of consumers seeking damages against Microsoft Corporation allegedly caused by Microsoft's use of monopoly power to overcharge purchasers of Microsoft's Windows operating system software during the period between February 1999 and April 2003.

Plaintiffs Paul A. Deiter, Franklin L. DeJulius, and Gary L. Leach, who made their purchases on the Internet or by telephone during the class period, were appointed class representatives. The district court excluded from the class businesses who were direct purchasers of software from Microsoft through its "Enterprise Program" because these "Enterprise customers" purchased bundles of various Microsoft software in large volume and for negotiated prices. The court concluded that the representative parties' claims were not "typical" of the claims that the Enterprise customers might have.

The court concluded in the alternative that certifying a class consisting of both individuals and Enterprise customers would not be "superior" to other methods of proceeding with the Enterprise customers' potential claims.

The Fourth Circuit affirmed the order, noting that the district court did not err in concluding that the representative parties' claims are not typical of the claims of Microsoft's Enterprise customers.

Wednesday, February 08, 2006

Old News but I have received questions on reciprocity

The House of Delegates addressed the issue of reciprocity at the South Carolina bar meeting last month. A proposal to allow reciprocity for admission to the bar was voted down by a very close margin. Apparently, the issue is dead for now.

Got to love legal protectionism.

Tuesday, February 07, 2006

Judge Henry Floyd approves class action antitrust settlement worth $489.7 Million

The South Carolina Trial Law Blog has this post on the settlement and the lawyers involved.

South Carolina Turnpike is coming......

This might not be appellate law, but surely it will spark some litigation.

South Carolina Gov. Mark Sanford on Monday signed a bill authorizing tolls for financing a 90-mile (145-km) stretch of the planned Interstate 73 to extend into the state's Grand Strand tourist region.

South Carolina expects its estimated share of the road to cost about $2 billion. State officials have said toll revenues would allow the highway in northeast South Carolina to be built within eight years.

Monday, February 06, 2006

Final Thoughts on the South Carolina School Funding Litigation

My final thoughts on the South Carolina school funding opinion can be found here. In essence, I think Judge Cooper's order, which was compelled by the state Supreme Court, was wrong for this reason:

Of course, this school funding litigation and the specter of more litigation should cause all South Carolinians to question the advent of the courts into state education policy. We elect a governor, senators and representatives to allocate finite tax dollars among many worthy efforts, including education. If we believe that not enough money is allocated to certain objectives, we have a remedy. In a democratic system with a guarantee of free speech, we may attempt to persuade our fellow citizens that funds should be reallocated to schools, parks, wetlands preservation, etc.

Via such advocacy, coupled with the ballot box, South Carolinians can trigger much change. The people's choice, via a ballot initiative, to adopt an education lottery is but one example of the democratic process working to bring about change and to fund additional programs.

With the state Supreme Court's judicial gloss on the constitution's aspiration that there be a system of public schools and the order requiring the General Assembly to spend more on pre-kindergarten programs, the people and their elected representatives are excluded from important facets of educational policy. The judiciary has, in effect, handcuffed the people and their representatives in the realm of education.

IRS issues statement on Fourth Circuit's Black and Decker Decision

My post on the Black and Decker decision can be found here.

The government's statement on the opinion is as follows:

Today's decision by the U.S. Fourth Circuit Court of Appeals will help to maintain the integrity of our federal tax system. The decision reverses the trial court's summary allowance of over $560 million in loss deductions claimed by the Black & Decker Corporation as a result of a 'contingent liability' tax shelter-a tax shelter that was widely marketed to other companies. In remanding the case for trial, the decision gives the government the opportunity to prove that the transaction was a sham, devoid of any economic substance apart from the tax consequences. Those who pay the amount of tax the law requires deserve the assurance that we will take all appropriate steps to stop the proliferation of abusive tax avoidance schemes that undermine the integrity of our nation's tax laws."

Attorney General McMaster likely to run unopposed this year

The State has this article.

Friday, February 03, 2006

Myrtle Beach settles suit with NAACP

According to WBNS:

The resort city of Myrtle Beach, South Carolina, has settled a federal lawsuit brought by the NAACP. The suit claimed black bikers attending an annual Memorial Day rally were treated differently than bikers attending a predominantly white Harley Davidson rally.

During the black rally, police required traffic on an oceanside street to move in only one direction while white bikers were allowed to cruise both ways.

A federal judge will still have to approve the agreement under which the city will require one-way traffic during the peak hours of both rallies.

Lawyers for the plaintiffs say the suit was brought three years ago only to win equal treatment for African-American tourists. A city spokesman calls the settlement a "pragmatic solution."

Fourth Circuit issues opinion in sham transaction case

In Black and Decker Corp. v. United States, we see Black and Decker trying this nifty trick:

A corporate taxpayer paid $561 million to a controlled subsidiary in exchange for 10,000 shares of the subsidiary's stock and the subsidiary's assumption of a $560 million contingent liability of the taxpayer. The taxpayer then sold the shares for $1 million, claimed a $560 million capital loss on its federal income tax return, and sought a refund based on that loss.

Needless to say, the IRS declined to pay and is going after Black and Decker for use of an illegal tax shelter. The District Court granted Black and Decker summary judgment on the "sham transaction doctrine," but the Fourth Circuit reversed and remanded for further proceedings.

Thursday, February 02, 2006

S.C. Supreme Court reverses conspiracy verdict against Hospital

In McMillan v. Oconee Memorial Hospital, the Hospital awarded an exclusive anesthesiology contract to a competitor of McMillan. McMillan then brought claims for conspiracy and other causes of action. The jury returned a verdict in favor of McMillan for $1,275,000 against the Hospital only on the conspiracy claim. As a result, McMillan made a motion to conform the pleadings to the evidence to allege civil conspiracy against the Hospital. The Hospital filed post trial motions including a motion to reduce the verdict and a motion for judgment notwithstanding the verdict. The trial court granted the motion to reduce the verdict and the verdict was reduced to $300,000 pursuant to the charitable immunity statute.

On review, the Supreme Court held that the trial court should have granted the Hospital's motion for a JNOV. According to the Court, a civil conspiracy cannot exist when the alleged acts arise in the context of a principal-agent relationship because by virtue of the relationship such acts do not involve separate entities. Agents for a corporation acting in the scope of their duties cannot conspire with the corporation absent the guilty knowledge of a third party. Because the jury did not find that the Hospital conspired with any entity other than itself, the verdict was set aside.

Governor Sanford approves of teaching intelligent design in the classroom

There has been much recent litigation over intelligent design. Governor Sanford is now on record indicating that he sees no problem with teaching the concept in classrooms.

The Post and Courier has this story.

Judge sets $750,000 bail for lawyer accused in strip club shooting

A Columbia attorney has been charged with murder after he allegedly shot a man in a strip club in connection with a dispute over $300 paid for a lap dance.

The State newspaper has this article.

Wednesday, February 01, 2006

Fourth Circuit, in age discrimination case, holds that employee must show employer's expectations have been met, not that employee is qualified

A panel for the Fourth Circuit Court of Appeals issued a decision in an age-discrimination case on January 30. The case, Warch v. Ohio Casualty Ins. Co., involved a claims investigator who was terminated at age 59 following two years of continuous performance problems. The Court affirmed the district court's grant of summary judgment in favor of the defendant employer on the basis that the plaintiff failed to meet his employer's legitimate job expectations. The plaintiff argued that he should only be required to prove that he was "qualified" for the job during the prima facie stage---not that he met his employer's job expectations. The Court rejected this argument noting that once an individual is hired the distinction between qualifications and job expectations tends to blur.

According to the Court if a plaintiff is able to proffer evidence at the prima facie stage that the employer's legitimate job expectations have been met, the employer may counter with evidence defining the expectations as well as evidence that the employee was not meeting those expectations. Although the plaintiff in this case argued that his employer's criticisms were too subjective to be considered at the prima facie stage, the Court disagreed stating that the evidence in the record demonstrated that the employer reprimanded the plaintiff based on concrete, specific observations and accompanied its reprimands with explicit instructions on how to improve. It is also worth noting that although the plaintiff presented some direct evidence of general age-related comments, the Court declined to afford the comments any relevance because they were not directed to the plaintiff and did not directly refer to him.

(contributed by Sandi R. Wilson)

Alito Confirmed

After the most partisan Supreme Court battle in more than a decade, Samuel A. Alito Jr. was sworn in Tuesday as the 110th justice on the Supreme Court. The Senate voted 58 to 42 to confirm him.

The LA Times has this article.

The Boston Globe has this article.

The Washington Times has this article.