Friday, September 29, 2006

What to expect from the Roberts Court


Roberts' second term as chief justice begins Monday with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.

The cases will bring crucial and tricky choices for the Court's other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O'Connor on the bench, as well as for Justice Anthony Kennedy, who replaced O'Connor in the less official position of swing voter

Thursday, September 28, 2006

Columbia, SC possibly banning smoking in bars

Next time you argue in one of the state's appellate courts, don't plan on stopping for a brew and a smoke on the way out of town. Some Columbia city leaders pushing for smoking ban. According to WIS, some Columbia city leaders are pushing for a ban on smoking in all public buildings, including bars and restaurants. That proposal was the focus of a public hearing City Council held Wednesday.

Wednesday, September 27, 2006

Matthew J. Perry to be inducted into Hall of Fame

From The State: Judge Matthew J. Perry Jr., the first black federal judge in South Carolina, is among 14 people to be inducted into this year's National Black College Alumni Hall of Fame.

Tuesday, September 26, 2006

South Carolina Supreme Court holds that 5-27-120 does not create a private right of action

In Vaughn v. Town of Lyman, the Supreme Court held that S.C. Code Ann. 5-27-120, which requires towns to keep sidewalks in good repair, does not create a private cause of action. The basis for this holding is the public duty rule. This rule holds that public officials are generally not liable to individuals for their negligence in discharging public duties as the duty is owed to the public at large rather than anyone individually. However, the Court did hold that there was a common law duty to keep sidewalks in good repair and that Vaughn could bring a common law cause of action. The Tort Claims Act did not protect the town because there was an issue of fact whether the town had notice of the defect and acted within a reasonable amount of time.

South Carolina Supreme Court upholds Physical Therapy Practice Act

In Sloan v. South Carolina Board of PT Examiners, the Supreme Court held that legislation prohibiting physical therapists from working for physician practices and receiving referrals from the physician practice is constitutional. The Plaintiffs argued that there is no rational basis for prohibiting physical therapists from receiving in-house referrals from the physicians who employ them. Self-referral concerns about escalating health care costs, conflicts of interest, and excessive profits apply to all South Carolina health care providers and not just to physical therapists. In the ambit of in-house referrals, all South Carolina health care providers are similarly situated and must be treated the same under state and federal equal protection analysis.

The Supreme Court disagreed, holding that the classification is not all health care providers who receive in-house referrals, but rather just physical therapists. And since the classification treats all PTs the same, the Court upheld it as constitutional. Justice Toal dissented:

The majority concludes that it would be inappropriate to hold that the legislature must treat all health care providers and allied health professionals as similarly situated for purposes of self-referral issues. I disagree. In my view, this is precisely the type of situation in which the legislature should treat all health care providers and allied health professionals as similarly situated. Unlike the majority, I would find that the classification has no reasonable relation to the types of variations and nuances of the medical profession which would necessitate a distinction between physical therapist and all other health care professionals. Although I would agree that the separate classification of physical therapists may be appropriate in other situations, I find it difficult to envision any aspect of physical therapy which is so different from other health care services that it warrants separate classification for self-referral purposes.

I was amicus curiae for a group of patients who wanted the statute struck down. Needless to say, I'm with Justice Toal on this one!

Monday, September 25, 2006

Fourth Circuit issues decision regarding inverse condemnation

In PRESLEY v. CITY OF CHARLOTTESVILLE, a panel of the Fourth Circuit considered the district court's dismissal of a section 1983 action against the City Presley alleged that, without her consent, the Defendants conspired to publish a map that showed a public trail crossing her yard and that the public, using the trail, caused much damage to her property. Presley asserted that the Defendants' actions violated her Fourth Amendment and due process rights. The district court granted the Defendants' motions to dismiss Presley's complaint for failure to state a claim upon which relief could be granted. The panel affirmed that there was no denial of due process, but reversed the district court on the Fourth Amendment claim.

An interesting dispute developed on the panelregardingf the Fourth Amendment claim. Judge Traxler in dissent argued that t Fourth Amendment claim was improper and that the true claim was a takings claim under the Fifth Amendment. The dissent saw the case an one of inverse condemnation and believed that the majority's decision upsets federal inverse condemnation law.

Friday, September 22, 2006

Lindsey Graham cannot serve both in Congress and as a military judge

From The State:

It is unconstitutional for Sen. Lindsey Graham to serve as a member of Congress and a military judge at the same time, the U.S. Court of Appeals for the Armed Forces ruled.

Graham, R-S.C., is a colonel in the U.S. Air Force Standby Reserve, and is assigned as a reserve judge to the Air Force Court of Criminal Appeals.

The decision Wednesday came after Airman 1st Class Charles M. Lane, who was convicted of wrongful use of cocaine during a special court-martial, challenged Graham's qualification to serve on the appellate court, saying it was a conflict of interest.

"We conclude that a member of Congress may not hold the office of appellate judge on a court of Criminal Appeals," the panel said in its decision.

The opinion of the court can be found here.

The Incompatibility Clause of the Constitution provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The issue before the Court was whether the assignment of a Member of Congress to the Air Force Court of Criminal Appeals is proper under the Constitution. The Court concluded that the assignment was inappropriate because of the clear violation of the Incompatibility Clause.

Thursday, September 21, 2006

Supreme Court hears arguments on sale of Mental Health property

From the Times and Democrat:

The South Carolina Supreme Court is weighing the questions of whether or not charitable trust law applies to the nearly 200 acres of Department of Mental Health land in downtown Columbia and under what conditions the property may be sold.

The state Supreme Court heard arguments Wednesday, after the Mental Health Commission and the State Budget and Control Board asked the state's top court to clarify whether a trust controls the massive Bull Street campus.Attorney General Henry McMaster said the agency's mission is a public charity and the entire Bull Street property is thus a charitable trust, an argument he also gave in an opinion he issued last December.

"A charitable trust is not an office or an address or a location but it's a relationship and that clearly existed here," McMaster said, adding that promises dating to the 1800s call for the land to be used to care for the mentally ill.McMaster said the state couldn't just sell the land for another use. "Most properties bought by the state can be handled in that fashion but this one was different," McMaster said.

Wednesday, September 20, 2006

Ron Motley files suit on behalf of camel jockeys

Do you think Ron smells a dollar here? Motley Rice has filed a class-action lawsuit accusing several Arab sheikhs of being involved in enslaving boys to be camel jockeys. The lawsuit claims that young boys are kidnapped or sold by their parents and trained to ride racing camels. They are allegedly treated much worse than the animals and thrown out when they are too old to race.

Tuesday, September 19, 2006

Lindsay Graham will not stop Jim Haynes from being voted out of Committee

From an interview with Hugh Hewitt:

HH: And will you vote to send William Haynes to the floor?

LG: He hasn't yet, but the truth is, I'll have a hard problem voting for Mr. Haynes. And you know, everybody else, I'm good to go, but I'll have a hard problem voting for him.

HH: Why is that?

LG: Because I believe that he was a responsible party at the Department of Defense at a time to come up with legal infrastructure in the War On Terror that really confused our troops. And I just don't want to make sure we put privates and sergeants in jail and fire the colonels. I think there has to be some accountability at the civilian side in the Department of Defense for creating policies that really have hurt the country. He's a good guy. He's an honest man, but I just have a hard time reconciling that, and he hasn't answered all the questions, yet, so I don't know where he's going to be. But I will not stop him from coming out of committee. If I don't vote for him, you can still send it to the floor.

Fourth Circuit upholds constitutionality of Uniformed Services Former Spouses' Protection Act

In ADKINS v. RUMSFELD the Fourth Circuit considered constitutional challenges to the Uniformed Services Former Spouses' Protection Act, which gives states the option to classify a United States armed forces member's disposable military retirement pay as property divisible upon divorce. In addition, the Act establishes a payments mechanism allowing an eligible former spouse to receive the share of the retired pay directly from the military pursuant to a state court order in divorce proceedings.

Current and retired members of the armed forces whose retirement pay has been divided in state divorce proceedings, sued the Secretary of Defense arguing that the Act and the regulations implementing it violate their constitutional rights to due process and equal protection of law. They also allege that the Act fails to respect the principle, purportedly rooted in the Constitution's Armed Forces and Full Faith and Credit Clauses, that legislation concerning military pay must have nationally uniform effect without variations among the states. The panel upheld the Act and rejected all constitutional challenges of Plaintiffs

Friday, September 15, 2006

William W. Wilkins, chief judge of the 4th U.S. Circuit Court of Appeals, says death penalty is here to stay

From the Richmond Times Dispatch:

"I think the death penalty will be around for a long time," Wilkins said. "But I think you're going to see escalating costs." Those opposing the death penalty argue the money can be better spent elsewhere, he said.

"It costs a lot of money for the federal and the state governments to prosecute somebody for the death penalty," Wilkins said. In Florida, such cases average about $22 million, he said.

Wilkins, a former prosecutor, has been involved in 96 death-penalty cases as an attorney or judge. He is chief judge of the Richmond, Va.-based federal court that hears appeals of federal cases from the Carolinas, Virginia, West Virginia and Maryland.

He said while polls show a majority of Americans favor the death penalty, jurors impose capital punishment in only about 10 percent of death-penalty cases.

Thursday, September 14, 2006

Tears Equals Mistrial

This is not from SC, but pretty relevant. In a death penalty case in Florida, the defense got the following instruction from the Judge when the mother of the victim was about to testify:

"If she gets emotional, I will grant a motion for a mistrial," Roberts said, eliciting emphatic headshakes from Dosso's friends and family. "If [the prosecutor] wants to put her on the stand with that in mind, he may do so."

In a compromise, both sides agreed to let the witness give her testimony outside the presence of the jury and then play a video of the testimony for the jury if it was deemed "unemotional" enough.

Wednesday, September 13, 2006

Fourth Circuit Judge J. Harvie Wilkinson on Gay Marriage and the Courts

This is an interesting op-ed by the former Chief Judge of the Fourth Circuit. Here is a taste:

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

Fourth Circuit affirms provisions of Virginia's Alcoholic Beverage Control Act

In BROOKS v. VASSAR, the Fourth Circuit considered a facial challenge, under the dormant Commerce Clause, to various aspects of Virginia's Alcoholic Beverage Control Act ("ABC Act"). The Court sustained the following statutes:

(1) Virginia Code 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and

(2) Virginia Code 4.1-119(A), which authorizes state owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.

The first statute was upheld because it does not favor in-state producers and thus does not discriminate against out-of-state producers:

Because the Twenty-first Amendment "grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system," and because the dormant Commerce Clause only prevents a State from enacting regulation that favors in-state producers and thus discriminates against interstate commerce, the Personal Import Exception does not violate the Clause.

The second statute was upheld under the market participant exception:

Virginia's choice of selling only Virginia wine is no more inappropriate than would be its choice to sell only Hershey's brand chocolate bars at a State commissary. Like all other in-state wine retailers, the ABC stores can choose which wines they purchase and stock, and Virginia's commitment to purchase only in-state wines is a choice that any wine retailer would be free to make for itself.

Tuesday, September 12, 2006

Zoloft murder appeal to be argued in SC Supreme Court

From ABC News:

The South Carolina Supreme Court will hear arguments next month in the appeal of the murder conviction for a boy convicted of killing his grandparents in Chester County.

Christopher Pittman's attorneys are appealing the conviction last year in the 2001 slayings. Pittman was 12 at the time of the slaying. His attorneys said he was involuntarily intoxicated by the anti-depressant Zoloft and didn't know right from wrong.

Defense attorney Andy Vickery says there were errors in the trial and that sentencing a juvenile to 30 years in prison amounts to unconstitutional punishment.

A lawsuit filed last week seeks to overturn the state's first municipal ban on indoor smoking

From the Island Packet:

The lawsuit, filed on behalf of Bert's Bar on Sullivan's Island, seeks to prove that smoking bans on the municipal level are prohibited under state law. In the suit, the restaurant argues that the Sullivan's Island ban that went into effect in May runs afoul of the Clean Indoor Air Act of 1990, which prohibits smoking in areas such as schools, government buildings and theaters, and a 1996 provision that says local laws cannot supersede state law.

Monday, September 11, 2006

Fourth Circuit holds that district courts lack authority to remit restitution order imposed under the Mandatory Victim Restitution Act

In UNITED STATES v. ROPER, the Fourth Circuit considered the Government's challenge to a district court's remittance of restitution. The Government asserted that because the district court imposed the restitution orders pursuant to the Mandatory Victim Restitution Act (MVRA), it lacked the authority to remit the restitution orders.

The panel held that the MVRA, in narrow circumstances, does allow for the reduction of an order of restitution where the victim has recovered a portion of the loss in a federal or state civil proceeding. However, this one exception was not present in this case. The Fourth Circuit concluded: "Because the MVRA includes one unique circumstance where district courts may reduce a mandatory order of restitution, we will not read into the statute any additional authority to remit such orders." Hence, the Court remanded with instructions to reinstate the restitution orders.

Wednesday, September 06, 2006

Fourth Circuit holds that "cocaine base" is not confined to crack

In UNITED STATES v. RAMOS, the Fourth Circuit considered, inter alia, whether the enhanced penalties in 21 U.S.C. 841(b)(1)(A)(iii) apply only to crack cocaine. The Court held that the plain language of the statute imposed no such limitation.

While we believe that Congress contemplated that "cocaine base" would include cocaine in the form commonly referred to as "crack" or "rock" cocaine, Congress neither limited the term to that form in the plain language of the statute nor demonstrated an intent to do so in the statute's legislative history. Congress used the chemical term "cocaine base" without explanation or limitation.

Tuesday, September 05, 2006

Fourth Circuit affirms denial of Sudan's motion to dismiss in USS Cole case

In RUX v. REPUBLIC OF SUDAN, a suit for damages arising out of the bombing of the USS Cole, the Fourth Circuit reviewed that district court' order denying Sudan's motion to dismiss for lack of subject matter jurisdiction. Sudan argued that the terrorist exception of the Foreign Sovereign Immunities Act was inapplicable in this case. Under the terrorist exception, a court reviews the complaint for allegations of (1) the provision of material support by a state sponsor of terrorism; (2) the provision of such support by an official of the state "while acting within the scope of his or her office, employment, or agency"; and (3) a causal link between the material support and damage resulting from an act of terrorism.

As for the first prong, the Court found that the allegations that Sudan supplied terrorists with "safe houses" constituted material support. The second prong was satisfied because the complaint alleged that the president of the Republic of Sudan authorized the entry into Sudan by Al-Qaeda operatives and gave Al-Qaeda special authority to avoid paying taxes and duties. Finally, the third prong was satisfied because the Complaint alleged facts sufficient to establish a reasonable connection between Sudan's support of Al-Qaeda and the damage to the USS Cole.