Friday, December 28, 2007

Prejudgment interest in South Carolina

In Dixie Bell, Inc. v. Redd, a breach of contract action arose when the parties failed to reach an agreement on the purchase price of Dixie Belle’s interest in another company. The case was tried to a jury and the jury returned a $100,000 verdict for Dixie Belle. The trial court awarded prejudgment interest on this sum. The Court of Appeals reversed. The Court held that prejudgment interest was improper because it has not been pled and that Dixie Belle’s damages,were unliquidated. In South Carolina prejudgment interest is only allowed on a liquidated sum. The claim was unliquidated because:

(1) there was no agreement between the parties as to a sum certain, (2) it could not be reduced to a sum certain by computation or formula, (3) the purchase price was not contractually stipulated, (4) it is not reduced to a sum certain by operation of law or a controlling statute, and (5) it could only be reduced to certainty by a jury determination. Furthermore, the conditions existing at the time the claim arose did not fix the measure of recovery.


On the whole, the opinion is a good discussion of the law of prejudgment interest in South Carolina.

Thursday, December 27, 2007

SC Supreme Court issues personal jurisdiction opinion

In Coggeshall v. Reproductive Fertility Clinics, the plaintiff underwent in vitro fertilization in a North Carolina clinic and then brought suit when the baby was born with Downs Syndrome. The trial court dismissed because of lack of personal jurisdiction and the Supreme Court affirmed. The Court held there were insufficient contacts with South Carolina to permit the exercise of personal jurisdiction. In a concurring opinion, Chief Justice Toal found that there was personal jurisdiction, but argued that plaintiff's were essentially seeking damages directly resulting from their child being born--a claim for wrongful life, which is not permitted in South Carolina.

Wednesday, December 26, 2007

Thirteenth juror doctrine may not be used to grant a new trial on damages

In Coward v. Roberson, after a verdict for the plaintiff and an award of damages, the circuit judge granted a new trial on damages alone based on the thirteenth juror doctrine. The Court of Appeals reversed, holding that "the grant of a new trial based on the thirteenth juror doctrine grants a new trial in toto" and that the "thirteenth juror doctrine is not the proper vehicle for ordering a new trial on a singular issue such as damages."

This opinion is a reminder on the limits of the Thirteenth Juror Doctrine.

Thursday, December 20, 2007

Truth as an affirmative defense

In Parrish v. Allison, the Court of Appeals reminds the bar that in a slander case truth must be pled and as an affirmative defense. It is not enough to argue truth, it must be pled in the answer.

Monday, December 17, 2007

Congress proposes to overhaul judicial pay and retirement

Here's the scoop on the proposed revisions.

Congress may be offering federal judges a major pay raise for the first time in 16 years, but lawmakers are also embracing a plan to deter senior judges from taking high-paying jobs in the private sector.The House Judiciary Committee approved a bill last week that will bump up salaries of all federal judges by a whopping 31 percent.But another provision in the bill would penalize any judges at retirement age who leave the bench for a high-paying job by reducing the amount of pension they receive.

(Hat tip to How Appealing)

Thursday, December 13, 2007

Sentencing Commission makes crack cocaine amendment retroactive

From the Commission's press release:

The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.

Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.

That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

Tuesday, December 11, 2007

SCOTUS gives district judges more discretion in sentencing

Linda Greenhouse has this report. Here is taste:

Judges still may not impose sentences above the range written into law by Congress or state legislatures. But the decision on Monday gives judges broad discretion to impose sentences higher or lower than the guidelines, which are not statutes and are issued by the United States Sentencing Commission.

SC Supreme Court finds no due process violation where man incarcerated with peitioner served on the jury

In Smith v. State, the SC supreme court upheld a decision of the PCR court denying petitioner post conviction relief. Juror Walling, who had been incarcerated with petitioner and who petitioner allegedly had a fight with, was seated on the jury. Only later after trial did Petitioner realize who Walling was. Petitioner discovered that he and Juror Walling had been incarcerated together at the Colleton County Detention Center in 1997. Petitioner made the connection when his cellmate noticed that Floyd Walling, the cellmate’s cousin, was listed as a juror on Petitioner’s trial transcript. At the PCR hearing, Petitioner testified he did not recognize Walling as the man he knew in prison because Walling had shaved his beard and was not wearing prison attire. Petitioner argued Wallings presence was a per se violation of his constitutional rights. The supreme court disagreed:

Here, it was reasonable for Juror Walling to remain silent when asked during voir dire whether any member of the jury pool was “related by blood or marriage or a close personal friend of [Petitioner].” At the PCR hearing, Juror Walling testified that he and Petitioner were not close friends. Petitioner corroborated Walling’s testimony when he acknowledged that he did not know Walling very well. Juror Walling also testified that he did not have any bias or prejudice against Petitioner, and he and the other members of the jury held the State to its burden of proof before finding Petitioner guilty of the two murder charges.

Based on Juror Walling’s testimony at the hearing, we believe that Walling did not intentionally conceal the existence of his prior relationship with Petitioner. Furthermore, because the disposition of this issue essentially involves a credibility determination as to whether Juror Walling intentionally concealed his prior relationship with Petitioner, we defer to the PCR judge’s findings. The PCR judge specifically found Juror Walling’s testimony to be “highly credible.” Accordingly, we affirm the judge’s holding that Petitioner did not suffer a per se violation of his due process right to a fair and impartial jury.

Monday, December 10, 2007

Book Review of My Grandfather's Son

Jeffrey Rosen has this review of Justice Thomas' new book.

Friday, December 07, 2007

Magna Carta for Sale

It would be pretty cool to own a copy of Magna Carta. Problem is that I'm a little short of the $20-30 million price tag.

Wednesday, December 05, 2007

SC Ct. of Appeals holds trial court did not error in permitting spectators to wear buttons bearing the victim's photo

In State v. Paige, Paige was convicted of manslaughter and requested a new trial because the trial judge denied his request to order the victim's family and friends to remove buttons with the victim's photograph on them. The Court of appeals applied an “actual or inherent prejudicial effect on the jury” test. After reviewing the record, the court found no prejudice.

The record shows the only mention of the buttons was prior to jury selection, and out of the presence of the jury venire, at which time defense counsel had to inquire whether the buttons did in fact depict a picture of the victim. There is no evidence of the size of the buttons, or the number of spectators who wore the buttons. While the trial court stated he would not require the individuals to remove the buttons, he insured that these spectators would not be called as witnesses, nor would they be seated in the front row. He further instructed that these individuals would not be allowed to make gestures, point to the pictures, or do anything in an attempt to influence the jury. Because no other mention was made of the buttons, this court cannot even determine that these spectators remained in the courtroom for the remainder of the trial or, if they did, whether they continued to wear the buttons. Simply put, there is absolutely no evidence of record that the jurors in this matter were ever exposed to these button photos, and, if they were, whether they could perceive that they depicted the victim. Accordingly, we find no actual or inherent prejudice to Paige based on the record before us.

Monday, December 03, 2007

SCOTUS to hear another Gitmo case

The New York Times has the latest on court's upcoming argument in Boumediene v. Bush, No. 06-1195.

Friday, November 30, 2007

North Street favored site of new federal courthouse in Greenville

From the Greenville News:

The city of Greenville and lawyers from several downtown firms told federal officials Thursday that they prefer that the new federal courthouse be built across from the county courthouse on North Street.

Several people who spoke at a public hearing on the site selection for the new $137 million building voiced opposition to a proposed site on Falls Street opposite the Liberty Bridge, saying that area would be better developed with shops and restaurants to take advantage of downtown foot traffic.

Thursday, November 29, 2007

Feds have three locations in mind for Greenville courthouse

The Greenville News has the scoop here.

ACLU threatens suit over Bowden's Chruch Day

From WYFF:

Clemson University football coach Tommy Bowden's tradition of encouraging his players to attend a church service as a team each preseason has drawn some criticism from the American Civil Liberties Union.

That criticism has prompted the university to change a policy related to that annual event.
ACLU officials said that they have gotten complaints from some football players in recent years about Bowden's "Church Day" tradition.

"We've been told he exerted some pressure on his football players to attend church as a mandatory event," ACLU Religious Liberties Task Force chairman Neil Caesar said. "Apparently it was a different church each year . The students were strongly encouraged to attend."

Wednesday, November 28, 2007

S.C. Court of Appeals holds that police officer is not qualified to determine whether DUI suspect is unable to give a breath test

In Peake v. SCDMV, Peake was in a one car accident and was taken to the hospital for treatment. A Trooper Manley requested Peake provide a blood sample at the hospital, believing Peake’s condition precluded a breath test. Peake stated he understood his implied consent rights and refused to submit a blood sample. Trooper Manley then issued Peake a Notice of Suspension which Peake refused to sign. On appeal, Peake contended section 56-5-2950(a) requires law enforcement to seek the opinion of a medical professional that a person is incapable of providing a breath test.

Section 56-5-2950(a) states in pertinent part: "At the direction of the arresting officer, the person first must be offered a breath test to determine the person’s alcohol concentration. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting officer may request a blood sample to be taken."

The Court of Appeals held that the plain language of section 56-5-2950(a) "permits an arresting officer to request a blood sample but unambiguously limits this to situations where a person is physically unable to provide a breath sample due to an injured mouth, unconsciousness or death, or for any other reason considered acceptable by the licensed medical personnel. In the case at bar, the Department has not asserted Peake had an injured mouth or was unconscious. Therefore, the Department was required under the implied consent statute to show Peake was physically unable to give an acceptable breath sample for a reason found acceptable by licensed medical personnel."

Hence, the court reversed the suspension of Peake's license.

Monday, November 26, 2007

Guns and the Constitution

The Wall Street Journal has a nice op-ed up on the Heller case. Here is a taste:

As a practical matter on the Court, the outcome in D.C. v. Heller might well be decided by one man: Anthony Kennedy, the most protean of Justices. However, in recent years he has also been one of the most aggressive Justices in asserting any number of other rights to justify his opinions on various social issues. It would seriously harm the Court's credibility if Justice Kennedy and the Court's liberal wing now turned around and declared the right "to keep and bear arms" a dead letter because it didn't comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard's Laurence Tribe has come around to an "individual rights" understanding of the Second Amendment.

Wednesday, November 21, 2007

SCOTUS grants cert in D.C. hand gun case

This is huge. At stake is whether the Second Amendment is an individual right.

Justice Pleicones says there was nothing nefarious about the bar exam grading changes

Well, an article from the State newspaper reveals lingering doubts about the bar exam story. From a comment by Justice Pleicones, it seems as if the Court has had its fill of the controversy:

Contacted Monday evening, Justice Costa Pleicones told The State there was “nothing nefarious about this.”

“People who believe in conspiracy theories are going to continue to believe them,” he said. “It’s very vexing to have your integrity questioned when you know you did nothing wrong.”


I don't know Justice Pleicones, but he has a reputation of fairness and honesty in the bar. Perhaps this is the last we will hear about the July bar exam.

Monday, November 19, 2007

SC Supreme Court tries to clarify bar exam matter

Here is the state Supreme Court's explanation of actions in the bar exam controversy:

On October 31, 2007, the examiner of the WTE section reported to the Clerk's Office that he had made a scoring error in his report of the examinees' scores. This was not a "re-grade,” but merely an error in transcription that was discovered as the examiner prepared to transmit the examination books to the Court. The error was that an examinee who had previously been reported as having passed the WTE section, had in fact failed the section. The Clerk of Court then reviewed the examinee's other essay section scores and discovered that the examinee's WTE failure, coupled with the examinee's failure on one other essay section resulted in the examinee not receiving an overall passing score. The examiner's initial report of a passing score was a scrivener's mistake. The scoring error and its consequence was reported to the full Court at its conference on November 1, 2007, at which time the Court was faced with determining what action, if any, to take with regard to the error.

After deliberation, the decision was made to eliminate the entire WTE section from consideration. In making this decision the Court determined that it would be inappropriate to reverse the affected examinee's previous notification of successful completion of the examination. See Rule 402(i)(5) ("The results reported by the Board of Law Examiners is final. . . ". This decision then raised the question of fair and equitable treatment for those examinees, who, like the examinee affected by the reporting error, had failed the WTE section and only one other section, thus resulting in an overall failing score. It was against this backdrop that the Court made the decision to eliminate the WTE section from consideration so as to provide equal treatment to those in exactly the same position as the affected examinee. The Clerk advised the Court that this action would result in an additional twenty examinees receiving overall passing scores on the examination.


Let me get this straight. Rather than an early Christmas gift to the one person who was told he passed but really failed, the Court throws out an entire section--the result of which is that 20 persons passed who should have failed. So a better result is to have 20 new lawyers admitted to the bar who failed the exam rather than one lawyer admitted who benefited from "an error in transcription"?

I like to believe that our Supreme Court strives to do the right thing. For those much more cynical than I, this explanation will be a tough sell.

Professor John Freeman and former Chief Justice Chandler call for disclosure in SC bar exam mess

This is a story that will not die. Rumors continue to abound that the Trusts and Estates section of the bar exam was thrown out to (1) help passage rates at the Charleston School of Law, (2) help the children of prominent law makers receive a law licence, and/or (3) help law clerks to several state court judges receive a law license.

At this point, the state Supreme Court needs to issue a statement explaining why the T&E section was tossed. Had it done so when it first scrapped the section, this story would never have taken off. Instead, we now have rampant speculation. One USC Law Professor has described the story as a "scandal." While I personally doubt any monkey business regarding the bar exam changes, most South Carolinians are left to infer that bar exam passage is just one more facet of our back-slapping, good-old-boy system of judicial politics. The profession is called into disrepute.

To clear the air, the Court should provide an explanation of the time line of events and the grading error and/or question framework error corrupting the T&E section. I hope we hear something before the Thanksgiving holiday; otherwise, this story will be around for some time.

Fourth Circuit holds that IRS is not required to list the amount of interest on Certificates of Assessment to collect both principal and interest

In UNITED STATES v. SARUBIN, Sarubin's tax returns revealed a 2 million dollar tax liability which he never paid. The IRS sued to collect over four million dollars, an amount representing the original debt and penalties plus statutory interest. The district court denied the government's motion for summary judgment for the full amount. The court allowed recovery on the original debt, but held that the government was estopped from collecting some two million dollars in interest that was not included in the indebtedness balance listed in the Certificates of Assessment attached to the motion for summary judgment.

The Fourth Circuit reversed. The Court held that the IRS was not required to list the full amount of interest in the Certificate. According to the Court:

Although establishing the amount of tax liability is a matter of evidence, the amount of interest accrued on such tax liability is a matter of law. United States v. Schroeder, 900 F.2d 1144,1150 n.5 (7th Cir. 1990). Therefore, the government provided sufficient evidence to prove that Sarubin owed the underlying tax debt sought, which debt has in turn accrued interest by operation of statute.The district court’s suggestion that the government failed to show a prima facie case by attaching the Certificates and citing to § 6601(a) was thus inaccurate.


Hence, the district court's decision was reversed.

Wednesday, November 14, 2007

Fourth Circuit holds counsel not ineffective for failing to introduce mental health evidence in mitigation

In MEYER v. BRANKER, the Fourth Circuit upheld a North Carolina capital sentence before the court on habeas review. Of note is counsel's failure to present mental health testimony in mitigation. counsel. Under the ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases, mental health mitigation evidence is extremely important to capital sentencing juries, and defense counsel therefore "should consider" including it at trial. ABA Guideline 10.11.F.2. Meyer argued his counsel was ineffective for failing to present mental health mitigation evidence.

The Fourth Circuit held that the ABA Guidelines are not dispositive in and of themselves and that no per se rule requires the presentment of such evidence at trial. The Court found counsel had good grounds for not presenting the evidence because after twice presenting mental health mitigation testimony unsuccessfully in previous proceedings, Meyer's counsel, after carefully considering and memorializing the testimony of seven experts, decided to adopt a new approach. This decision, according to the panel, "could hardly be termed unreasonable."

Tuesday, November 13, 2007

More on the Charleston School of Law Bar Passage

Over at the Feminist Law Professors Blog, they are reporting that 8 of the 20 students who passed because the T&E section was thrown out were Charleston students.

Sunday, November 11, 2007

Questions about bar passage rates and the new Charleston Law School

The South Carolina Bar results are out and the new Charleston School of Law did not fair so well when compared to the more established USC School of Law. 91 percent of University of South Carolina law grads passed the bar, whereas just 70 percent of Charleston law grads did. That is a pretty wide disparity. The Charleston School of Law's reputation is further tarnished by suggestions that the Supreme Court of South Carolina tossed out the Trusts and Estates section of the bar exam to boost the Charleston pass rate. I think this latter assertion is incredible, but whispers abound.

Of course, it is not an easy job to found a new law school and a 70 percent passage rate is substantial. Nonetheless, Charleston will always be compared to USC. While Charleston is a beautiful place to live, its law school's price tag and a bar passage rate 20 points lower than USC's might persuade some perspective law students to look towards the midlands rather than the low country.

Thursday, November 08, 2007

S.C. Supreme Court holds that Section 18-9-130 does not grant the trial the power to stay execution of judgment in an appeal from a Rule 60 motion

In Stearns Bank v. Glenwoodfalls, dealt with a default judgment, a rule 60 motion to set aside the judgment, and then an appeal from the denial of the Rule 60 motion. Months after respondent appealed the denial of its Rule 60(b) motion, it filed a motion in circuit court seeking to stay the underlying default judgment pending disposition of the appeal. Following a hearing, the circuit judge issued an order refusing respondent’s request that he stay appellant’s right to execute on the judgment during the Rule 60 appeal, but holding that if appellant wished to do so, it must post a bond or undertaking pursuant to § 18-9-130.

Section 18-9-130 provides:

(A)(1) A notice of appeal from a judgment directing the payment of money does not stay the execution of the judgment unless the presiding judge before whom the judgment was obtained grants a stay of execution.


The Supreme Court held that relief under 18-9-130 was unavilable because there was no money judgment that had been appealed. An order denying the Rule 60(b), SCRCP, motion is not “a judgment directing the payment of money.”

[W]hen a debtor appeals the denial of its 60(b) motion, Rule 225, SCACR, which governs stays on appeal, comes into play. The general rule is that an appeal acts as an automatic stay of the relief granted below, subject to certain exceptions. Id. Rule 60(b) denials are not subject to an exception, nor is there any logical reason why they would be. The denial of such a motion grants no relief: that “no relief” is automatically stayed leaves the parties in the exact position they were in before the 60(b) motion and appeal, that is, the original judgment is unaffected.


The moral of the story is that if you are hit with a default judgment, remember that 18-9-130 provides no relief. Also remember to make use of Rule 60(b)(2), which provides that "In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition…of a motion for relief…made pursuant to Rule 6o." The judgment debtor should have filed such a motion in this case, but did not.

Monday, November 05, 2007

Virginia judge removed for ordering woman to drop pants and deciding custody dispute with a coin flip

From Law.com:

A judge who ordered a woman to drop her pants and decided a custody dispute by flipping a coin was removed from the bench by the Virginia Supreme Court on Friday. The decision against Juvenile and Domestic Relations Court Judge James Michael Shull of Gate City was unanimous.

Friday, November 02, 2007

Fourth Circuit vacates arbitration confirmation on due process grounds

In RZS HOLDINGS AVV v. PDVSA PETROLEO S.A., RZS sought relief from a judgment entered against it confirming an arbitration award in favor of PDVSA. During a hearing to confirm the award, the district court permitted RZS's counsel to withdraw, denied RZS's owner permission to proceed pro se, and struck RZS's pro se pleadings. Although RZS had also sought a continuance to obtain replacement counsel, the court proceeded instead to address and rule in favor of PDVSA on its motion to confirm the arbitration award--effectively denying RZS's continuance request and conducting an ex parte proceeding in which it ruled on the merits of the controversy. The Fourth Circuit vacated the award confirmation on due process grounds.

In these circumstances, RZS was denied its due process right to meet and oppose the claims of PDVSA, and to otherwise participate in the resolution of the merits of this case. If RZS had been present during the Nonadversarial Part of the hearing, or if the court had accorded RZS some reasonable opportunity to seek replacement counsel, RZS is likely to have exercised its right to oppose confirmation of the arbitration award. It was unable to do so, however, and the Nonadversarial Part of the hearing resulted in a final judgment against RZS. In such circumstances, the district court committed prejudicial error, abusing its discretion in failing to grant RZS a reasonable continuance to secure replacement counsel and in conducting an ex parte proceeding on the merits of the case.

Thursday, November 01, 2007

Fourth Circuit rules on Medicare overpayment issue

In MACKENZIE MEDICAL SUPPLY v. LEAVITT, MacKenzie sought to reverse the Secretary of the United States Department of Health and Human Services’ (the Secretary) determination that it overpaid MacKenzie $508,747.57 in Medicare reimbursement payments for135 power wheelchairs that MacKenzie provided to Medicare recipients. The Secretary argued that MacKenzie was liable for the overpayment because a post-payment audit revealed that insufficient medical documentation existed to establish the medical necessity of providing each power wheelchair at issue. In its defense, MacKenzie argued that the documentation that it submitted for reimbursement, in the form of certificates of medical necessity (CMN) , sufficed to qualify for reimbursement.

MacKenzie went through various levels of appeal, but it was found that MacKenzie had ignored various regulations and statements from HHS "which advised suppliers that if clinical records were not available to support a CMN, payment could be denied." MacKenzie was not without fault, and,therefore, was not entitled to a waiver of liability under Medicare Part B’s safe harbor provision. In other words, MacKenzie was required to pay back the entire amount.

The appeal eventually reached the Fourth Circuit and the Court began by noting that a CMN is not sufficient it and of itself to establish medical necessity under the regulations. Even if a supplier has a physician order on file, failure of the patient’s medical records to substantiate the condition for which Medicare approves reimbursement may nonetheless subject the supplier to liability for repayment of that reimbursement to the Medicare program, and possibly to civil and criminal penalties.

Hence, the Fourth Circuit affirmed the dertermination below.

Wednesday, October 31, 2007

Fourth Circuit holds that inmate's challenge to publications ban is moot

In INCUMAA v. OZMINT, Incumaa, was an inmate in a South Carolina Maximum Security Unit ("MSU"), and brought a 1983 action alleging that a prison policy barring MSU inmates from receiving publications via the mail violated his First Amendment rights. The district court granted summary judgment in favor of the Departmaent of Corrections, and Incumaa appealed. While the appeal was pending, Incumaa was released from MSU. Because the MSU publications ban no longer applies to Incumaa, and given that an inmate must "earn" assignment to the MSU through violent behavior or noncompliance with prison policies, the Fourth Circuit held that there is no indication that the MSU ban will ever apply to him again. Hence, the appeal was dismissed as moot.

Here is a nice summation from the opinion of Chief Judge Karen Williams:

Federal courts are not comprised of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating about abstractions in the law or merely giving advice about the potential legal deficiencies of a law or policy when no ongoing controversy exists with respect to that law or policy. Given that Incumaa no longer is subjected to the MSU publications ban and there is every indication that Incumaa controls his own fate so far as the prospects for his return to the MSU are concerned, any opinion that we offered in this case about the MSU publications ban’s constitutionality would be advisory in the truest sense.


A beautiful exercise in judicial restraint and well said. We are fortunate to have her at the helm of the Fourth Circuit.

Tuesday, October 30, 2007

SCOTUS grants cert. in Exxon Valdez case

This case could be the next chapter in SCOTUS punitive damages jurisprudence. The original award in punitives was $5 billion, but the Ninth Circuit knocked it down to $2.5 billion, which Exxon argues is still 123 times more than the actual damages.

Here is the take from Law.com.

SCOTUS blog has this report.

Monday, October 29, 2007

S.C. Court of Appeals gives narrow interpretation to privileged information received by probation officer

In Hutto v. State, Hutto challenged on PCR his counsel's ineffectiveness for failing to move to suppress the evidence presented against Hutto on the basis of an improper disclosure by a probation agent. At base, Hutto's agent noticed cuts on his hands during a routine visit and then reported this after seeing a "be on the lookout" for a man meeting Hutto's description who also had lacerations on the hands and arms. The relevant statute reads as follows:

"All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director." S.C. Code Ann. § 24-21-290 (2007).

The Court of Appeals took a narrow interpretation of the statute:

We hold that Harris’s observations of Hutto’s scratches do not constitute the kind of information or data considered privileged under section 24-21-290. The statute’s title indicates that for information or data to be privileged under section 24-21-290, it must be “received” by a probation agent. Black’s Law Dictionary defines the word “receive” as to “take into possession and control; accept custody of.” 1433 (4th ed. 1968). This definition infers a transfer or transmission. We find that Hutto has failed to show how Harris “received” information or data by merely observing the wounds on Hutto’s hands and arms. We believe this interpretation is in keeping with the legislative intent and would not undermine the statute’s purpose.


Seems like to me the natural language of the text would prohibit the disclosure. The probation officer received information when he observed Hutto's wounds during an official visit. To me, that was data obtained in the discharge of his official duties. I think the Court simply got this one wrong as they tried to reach "the right" result. I'd petition for cert on this one.

Friday, October 26, 2007

Judge Herlong blasts government for seeking death penalty in the Comfort Inn Fire Case

From the Greenville News:

A federal judge Thursday criticized the U.S. Attorney's Office for wasting as much as $2 million in seeking the death penalty against convicted arsonist Eric Preston Hans, saying prosecutors sought a death sentence they should have known they'd have difficulty winning.

U.S. District Judge Henry Herlong also asked why federal prosecutors didn't seek charges against one of their star witnesses, who in testimony admitted to dealing drugs and being high on methamphetamine on the night his girlfriend and his 15-month-old son died in a Greenville hotel fire that Hans set.

Troutman takes a shot at Judge Few

According to the Greenville News, County Councilman Tony Trout has sent Gov. Mark Sanford a letter calling for the recusal or removal of Circuit Judge John Few from his oversight of a grand jury investigation into allegations of misuse of funds in the Greenville County roads program.

This unwarranted criticism is unfortunate. Judge Few has proven to be one of the brightest and most fair-minded jurists on the South Carolina trial bench. His name has also been mentioned for the State Court of Appeals and Supreme Court. Let's hope Councilman Trout's comments do nothing to damage the stellar reputation of Judge Few. It would be nice to one day see him sitting as an appellate judge.

Thursday, October 25, 2007

Fourth Circuit holds that Congress can amend Lanham Act with appropriations rider

In LAST BEST BEEF v. DUDAS, the Court considered the relationship between the Lanham and Section 206 of the subsequently enacted Appropriations rider which prohibited the use of federal funds to "register, issue, transfer, or enforce any trademark of the phrase ‘The Last Best Place.’" Apparently, this phrase is associated with the state of Montana and many people objected to a business seeking to profit from it. The district court deemed § 206 "invalid," and thus a legal nullity, on the grounds that it contradicted but did not constitute an implied repeal or suspension of the Lanham Act. In essence, the district court held that implied repeals through appropriations riders, though constitutional, are so disfavored as to be disallowed.

The Fourth Circuit reversed, holding that Congress acted within its authority.

The conclusion that Congress intended to enact a discrete and narrow exception to the Lanham Act is unavoidable. In fashioning § 206,Congress simply set forth an exception to the Lanham Act’s general rule that trademark registration may not be refused on the basis of the nature of the trademark. This is something Congress can do. In fact,Congress has often removed specific trademarks from the general trademark application process.

Wednesday, October 24, 2007

Solicitor urges harsher penalties

According to Yahoo News, Solicitor Bob Ariail is calling for harsher penalties for involuntary manslaughter.

Tuesday, October 23, 2007

State may not appeal directed verdict in criminal case to correct error of law

In State v. Tillinghast, Tillinghast was charged with possession of alcohol by a minor in violation of S.C. Code Ann. § 20-7-8920. A magistrate directed a verdict for Tillinghast on the ground § 20-7-8920 was unconstitutional as applied to him. The State appealed to the circuit court and argued that the magistrate erred by directing a verdict of not guilty. The circuit court found that it had jurisdiction to hear the appeal and subsequently found the magistrate had erred by ruling § 20-7-8920 was unconstitutional. The Supreme Court reversed on jurisdictional grounds.

According to the Court, no writ of error, appeal, or other proceeding lies on behalf of the state to review or to set aside a verdict or a judgment of acquittal in a criminal case, although there may have been error committed by the court. The cases refusing the State's right of appeal are premised upon the basic double jeopardy principle that a defendant in a criminal prosecution is in legal jeopardy when he has been placed on trial under a valid indictment and a competent jury has been sworn. Thus, the circuit court did not have jurisdiction.

Monday, October 22, 2007

Emergence of an elite SOCTUS Bar

Law.com has an insightful essay up on the growing influence of the modern Supreme Court bar. Here is a taste:

The Court's docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court's cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.

Friday, October 19, 2007

Kilpatrick Stockton snubbed Justice Thomas

And we all the better for it. According to this article, just out of law school, Thomas was unable to land a job at k&S or any other big Atlanta firm. But for the snub, Thomas speculated that he would be safely practicing tax law somewhere.

Wednesday, October 17, 2007

Fourth Circuit keeps suit against Microsoft alive

In NOVELL v. MICROSOFT, the Fourth U.S. Circuit Court of Appeals affirmed a district court order holding that Novell's antitrust complaint against Microsoft regarding the company's former productivity applications that competed with Office can go forward. Novell eventually sold the WordPerfect word processor and the Quattro Pro spreadsheet to Corel in 1996, but sued Microsoft in 2004 for anticompetitive practices it alleges Microsoft engaged in while Novell still owned the products.

The lower court ruled that four of Novell's claims had passed the statute of limitations and were no longer valid. In affirming the other two claims, however, the appeals court ruled that, since they were both named in the U.S. Department of Justice's own antitrust complaint, they were not subject to the same time limits.

Thursday, October 11, 2007

Filing error comes at a bad time for Fourth Circuit nominee E. Duncan Getchell

From Law.com:

As if E. Duncan Getchell Jr.'s nomination to the 4th U.S. Circuit Court of Appeals wasn't already struggling just a month out of the gate, now a Virginia newspaper reports a clerical error that cost a client an $8 million jury verdict could be tagged to Getchell or his firm, McGuireWoods.

Although it is still unclear who was responsible, someone failed to file a trial transcript in an appeal of the $8 million case stemming from a ski accident at Wintergreen Resort, near Charlottesville, Va.

Getchell and his prominent Richmond, Va., firm took over the appeal after the 2004 verdict. He reportedly signed a notice of appeal stating, inaccurately, a trial transcript had been filed, according to the Virginian-Pilot.

Tuesday, October 09, 2007

With Criminal contempt, the defendant does not hold the keys for his release

In Miller v. Miller, the family court held Husband in contempt because he failed to honor a court order and permit Wife to remove her property from the marital home. The family court ordered Husband to return Wife's property. His failure to do so would result in a sentence of twelve (12) months incarceration, with the provision that he would be "released by the return of such property." While the Court of Appeals upheld the finding of contempt, it noted that "the family court committed an error in nomenclature by designating the contempt criminal rather than civil."

Without doubt, this is a civil contempt proceeding. The family court's Amended Order does not subject Husband to an unconditional, fixed term of imprisonment. Husband, if imprisoned, could obtain his release by complying with the court's directive; he held the keys to his prison. The contempt ruling was obviously intended to compel Husband's compliance with the requirements of the Temporary Order. Although mistakenly referred to as criminal contempt, substantively, the family court's finding of contempt was civil in nature.

All in all, this case provides a good discussion of the law of contempt in South Carolina.

Monday, October 08, 2007

With Doyle challenges lawyer must get evidence of Miranda in the record

In Brown v. State, the PCR petitioner challenged his counsel's failure to object to certain Doyle evidence used on cross-examination (i.e., the solicitor's repeated questions on why Brown did not give a statement to police indicating that someone else committed the crime). The United States Supreme Court has held the use of post-arrest silence for impeachment purposes is allowed when no Miranda warnings are given. The Court of Appeals held there was no error in allowing the questioning:

In the case at bar, there is no evidence in the record that Brown ever received the Miranda warnings. The investigating officer testified about his investigation of the crime and his activities in speaking with eyewitnesses. However, there was no testimony recounting conversations with Brown nor did the officer indicate whether Brown received Miranda warnings upon his arrest. A signed waiver of rights form was not introduced by the solicitor, nor did Brown introduce evidence of such a form at the PCR hearing. Therefore, Brown did not meet his burden of proving the solicitor committed a Doyle violation and that trial counsel erred in failing to object. See, e.g., State v. Mitchell, 330 S.C. 189, 194, 498 S.E.2d 642, 645 (1998) (appellant has burden to provide a sufficient record for review).

Friday, October 05, 2007

High Court hears argument in New York election case

Yesterday the High Court heard arguments in New York State Board of Elections. v. Torres (06-766). The basic issue is whether New York’s judicial election system, which nominates candidates through a party convention system, violates the First Amendment rights of voters and candidates. The unique system has primary voters elect delegates to a convention that then chooses candidates who most often run unopposed in the general election.

Law.com has this article on the case.

Thursday, October 04, 2007

Wednesday, October 03, 2007

Fourth Circuit rules on Virginia's open primary statute

In MILLER v. BROWN, the Fourth Circuit held that a Virginia statute permitting an official seeking re-election to force his party to pick its nominee for the seat in an open primary is unconstitutional. The court ruled unanimously that open primaries are constitutional when freely chosen by a political party because state law also provides the option of closing the nominating process by holding conventions or canvasses, known as "firehouse primaries."But when an elected state official seeking another term uses the law to force his party to open the nomination to every voter through a primary, it violates the party's First Amendment's right of free association.

Tuesday, October 02, 2007

Friday, September 28, 2007

Fourth Circuit issues opinion on jury trials in admiralty cases

In Re: LOCKHEED MARTIN CORP, Lockheed was denied a jury trial on Lockheed's counterclaim seeking money damages in an admiralty case. The dispute was over damage to a ship and National originally filed a declaratory judgment action seeking a finding that any claim by Lockheed was time barred under the relevant insurance policy. Once the district judge denied a jury trial on the counterclaim, Lockheed filed a petition for writ of mandamus, arguing that it had a Seventh Amendment right to a jury trial which the district court violated. The Fourth Circuit held that Lockheed did have a right to a jury trial.

Although the action sounds in admiralty, that is only because National won the race to the courthouse door and made the Rule 9(h) designation first. Beacon Theatres, however, requires us to ignore National’s status as the declaratory judgment plaintiff and to instead look to how the action otherwise would have proceeded. Without the declaratory judgment vehicle, Lockheed would have sued National for breach of the insurance policy, a claim over which admiralty and "law" courts have concurrent jurisdiction. As the plaintiff, Lockheed would have been entitled under the saving-to-suitors clause to designate its claim as a legal one as to which there is a Seventh Amendment right to jury trial.


The "saving to suitors" clause is found in 28 U.S.C.A. § 1333 (West 2006), and states that "district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." The effect of the saving-to-suitors clause is to permit maritime in personam claims to be pursued in federal court as maritime (and thus non-jury) claims, in state court as legal claims, or in federal court as legal claims (for which a jury trial is available) if an independent basis for federal court jurisdiction exists. Under this clause, Lockheed had a right to proceed at law on its claim of breach of insurance contract.

Thursday, September 27, 2007

Court of Appeals issues insurable interest opinion relating to UM coverage

In Nationwide v. Smith, a 1999 Montero vehicle was involved in an accident with an uninsured vehicle. The Montero was insured by Nationwide Policy Number: 61 39 K 931345. While the Montero was owned by and registered to Son, and the Nationwide policy covering the Montero was taken out and owned by Father. Nationwide denied coverage and filed a declaratory judgment action for a determination that the policy covering the Montero was void for lack of an insurable interest. Nationwide argued Father lacked an insurable interest in the vehicle because he did not own the Montero, did not control the Montero, or was not responsible for or could be held liable for its operation or use. Son argued because he used the Montero to transport Father, Father benefited from its use and therefore had an insurable interest in the Montero. Regardless, Son averred the insurable interest requirement for liability coverage was irrelevant when dealing with UM coverage inasmuch as the uninsured motorist statute mandates insurers to provide UM coverage to the named insured and resident relatives of the named insured’s household at all times. The trial court held the insurable interest requirement was irrelevant to UM coverage and Nationwide appealed.

Although recognizing the purpose of the uninsured motorist statute is to provide benefits and protection against the peril of injury or death by an uninsured motorist to an insured motorist and his family, the Court found that the lower court erred in ignoring "the well settled rule of law in this country that an insured must possess an interest in the subject matter of the policy." The case was remanded to determine whether Father had an insurable interest in the vehicle.

Wednesday, September 26, 2007

4th Circuit is Split Down the Middle

Over at Law.com, Brendan Smith has a good piece up on the beginning of the Fourth Circuit's term and how the number of vacancies will impact the Court. Here's a link.

"I think the ideological balance of that court is completely in play," says Jay Sekulow, chief counsel of the conservative American Center for Law and Justice. "I think this is the most important judicial nominee fight that we've had in decades, and you've got an entire court of appeals hanging in the balance."

A full third of the 15 active judgeships on the 4th Circuit are vacant, accounting for five of the 16 vacancies on circuit courts nationwide. The 10 active judges are split 5-5 in an ideological divide that potentially pits five judges appointed by President Bill Clinton against five judges appointed by Presidents George W. Bush, George H.W. Bush or Ronald Reagan.

Monday, September 24, 2007

Fourth Circuit decides SC Contracts Clause Case

In CATAWBA INDIAN TRIBE v. CITY OF ROCK HILL, the Tribe and the City entered into an Agreement whereby the City would provide the Tribe with water and sewer services. Under the Agreement, each water meter costed $55.00 and would be installed upon the Tribe's request. Later in 2003, the City adopted an Ordinance imposing water and waste water impact fees "for all water and/or waste water service requests," including requests for "new service, water and/or waste water extension requests and agreements, additional meters, or upgrades of existing services that will create any new or additional demand on the City’s water and/or waste water systems." The Tribe did not request service and installation of the meters until August 2003, and thus the City asserted that the Tribe must pay the impact fee. The Tribe brought suit under the Contracts Clause of the Constitution.

The Fourth Circuit disagreed with the Tribe. The Tribe conceded that it expected to pay the regular fee that the City charged services; and thus the Fourth Circuit held that the natural extension of this argument is that nothing restricts a public utility from raising or otherwise varying its fees. The original agreement simply did not touch on this later issue--all the original agreement contemplated was for the City to provide services, which it was willing to do. Hence, there was no impairment of contracts.

Friday, September 21, 2007

Governor Orders WCC to strictly apply AMA Guides

Yesterday, the Governor signed an Executive Order requiring the Workers' Compensation Commissioners to strictly apply either American Medical Association Guides or any other accepted medical treatise when making compensation determinations.

The SC Bar has the Executive Order posted here.

Wednesday, September 19, 2007

The Honorable Emory Widener: RIP

I regret to pass on that the Fourth Circuit's Judge Emory Widener passed away today. I had the pleasure to argue in front of Judge Widener last fall and he was a true gentleman. He will be missed. Judge Widener served on the bench since 1969 and through 1000 volumes of the Federal Reporter.

Many thanks to this distinguished jurist for his years of service. The Fourth Circuit will not be the same without him.

S.C. Court of Appeals clarifies pleading requirements for attorney fee award

In SCE&G v. Hartough, a declaratory action was instituted regarding an option contract to purchase land. SCE&G prevailed and was awarded attorney fees against Hartough. On appeal Hartough argued the special referee erred in awarding attorney’s fees inasmuch as SCE&G did not specifically plead it was seeking attorney’s fees pursuant to the option contract but merely stated in its pleading that it sought attorney’s fees for bringing the action. The Court of Appeals found nothing to bar the award of fees:

SCE&G commenced the action in order to determine the validity of the option pursuant to the contract. The contract permitted any prevailing party to seek attorney’s fees in an action to enforce any right under the contract. In addition, the pleadings requested attorney’s fees. Therefore, Hartough was apprised SCE&G would be seeking a recovery of fees if successful. Accordingly, the special referee did not err in awarding fees.

Tuesday, September 18, 2007

John Yoo to speak in Charleston

For those readers in the Charleston area, drop by the Charleston School of Law on September 24 to hear John Yoo speak on Presidential Power in Time of Emergency. John Yoo is a professor of law at the University of California at Berkeley School of Law, where he has taught since 1993. From 2001-03, he served as a deputy assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security, and the separation of powers. He served as general counsel of the U.S. Senate Judiciary Committee from 1995-96, where he advised on constitutional issues and judicial nominations.

Time and place:

Monday, September 24
12:00 Noon
The Charleston School of Law
81 Mary Street

Monday, September 17, 2007

SC in the vanguard on pink outfits for inmates

A South Carolina inmate forced to wear a pink uniform after gratifying himself in front of a female prison guard has brought the "pink punishment" to the national scene. As this article demonstrates, the punishment has been implemented elsewhere and the SC inmate's case will likely have national implications.

Michael Mukasey or Wlliam Wilkins??

The word on the street is that Dubya will nominate Michael Mukasey to become the next attorney general of the United States. However, don't be suprised to see Judge Wilkins' name mentioned again if Mukasey does not pan out for the White House.

On Sunday, the Greenville News had a good article on the politics behind the scenes and implications for a Wilkins nomination.

Sunday, September 02, 2007

Vacation Time

I'll be traveling through Germany until September 15. Thus, all will be quiet at this blog for the next two weeks. Check back mid-September for the latest SC appellate law updates.

Wednesday, August 29, 2007

MegaFrim Humor

These are some humorous recruiting videos by Choate Hall & Stewart. I would guess these are pretty effective as well (and true).

Anyway, I got a chuckle. Nice work.

Tuesday, August 28, 2007

S.C. Supreme Court holds laches is not a defense to claims for past due alimony

In Strickland v. Strickland, the South Carolina Supreme Court held that although the equitable nature of laches generally comports with the family court's equitable jurisdiction in determining support and maintenance between former spouses, the concept of "inexcusable delay" in the laches defense is inconsistent with the judicial authority inherent in a court order. Because court orders awarding support and maintenance do not have an expiration date, the Court held that allowing a party to avoid compliance based solely on the oblique notion of delay only serves to undermine the authority of the court. Hence, the Court concluded that laches is not a defense to a claim for the enforcement of an alimony award.

Remember, denials of Motions in Limine are not immediately appealble

In a short opinion issued yesterday, the Supreme Court rebuked the Court of Appeals for deciding a case based on the denial of a motion in limine. A motion in limine is generally not considered a final order on the admissibility of evidence and, for that reason, is not immediately appealable.

Trial lawyers: remember that even if you make a motion in limine to exclude evidence and the trial court denies the motion, you must also object during trial to the admission of the evidence or your issue will not be preserved for appeal.

Lindsey Graham backs Wilkins for AG

The State has Senator Graham's comments here. As I noted yesterday, Wilkins would be a terrific candidate for the office. No doubt Graham hopes this would get some of the Upstate GOP off his back. Just recently the Greenville GOP voted to censure Graham because of his stances on immigration and border security.

Monday, August 27, 2007

Could William W. Wilkins be the 81st United States Attorney General?

With Gonzales stepping down and Judge Wilkins having just taken senior status, this is a possibility. Wilkins is a solid conservative with law and order credentials, and he also gets along well with Democrats such as Senator Joe Biden. He certainly has the integrity and the experience to bring credibility back to the Department of Justice.

We'll see how this progresses.

Friday, August 24, 2007

SC Inmate sues over "pink punishment" for gratifying himself

From Yahoo News:

South Carolina's prisons director Tuesday defended a policy of punishing inmates who perform sex acts by dressing them in pink, despite a lawsuit claiming the rule subjects prisoners to ridicule.

State Corrections Department John Ozmint said the two-year-old punishment deters inmates and protects female officers. His agency has asked a federal judge to dismiss the lawsuit.
"We don't believe the United States Constitution protects an inmate's right to publicly gratify himself," Ozmint said. "We're hopeful federal courts won't look into our Constitution and create such a right."


Inmate Sherone Nealous, 31, filed the lawsuit in June 2006, claiming the Corrections Department "is placing inmates' lives and physical well-being in danger."

"The color 'pink' in an all-male environment no doubt causes derision and verbal and physical attacks on a person's manhood. This policy also gives correctional officers an easy avenue to label an inmate," Nealous, who is serving a 10-year sentence for assault and battery with intent to kill, wrote in his lawsuit.

Reggie Lloyd Indicts Three Mexican Nationals in South Carolina Sex Trafficking Case

From The Examiner:

Three Mexican nationals were indicted yesterday for sex trafficking and related crimes, Assistant Attorney General Wan J. Kim of the Civil Rights Division and U.S. Attorney Reginald I. Lloyd of the District of South Carolina announced.

According to the 20-count indictment, Jesus Perez-Laguna, Guadalupe Reyes-Rivera a.k.a. "Mama Martina," and Ciro Bustos-Rosales violated federal law by conspiring between November 2006 and March 2007 to bring Mexican women into South Carolina for the purpose of engaging in commercial sex. The indictment alleges that in at least one instance the victim was 14 years old. The indictment also charges the defendants with various immigration violations including the harboring of illegal aliens.

Thursday, August 23, 2007

Fourth Circuit holds that data from diagnotic machine is not a statement under Crawford v. Washington

In UNITED STATES v. WASHINGTON, at trial, the government offered, over Washington’s objection, the expert testimony of Dr. Barry Levine to prove that a blood sample taken from Washington the night of his arrest contained PCP and alcohol. Washington’s argued that the raw data generated by the forensic lab’s diagnostic machines and relied on by Dr. Levine to give his testimony amounted to testimonial hearsay statements of the lab technicians who operated the machines. As a result, Washington argued that Dr. Levine’s testimony was not admissible,as Washington had a right to confront the technicians and cross examine them by reason of the Sixth Amendment’s Confrontation Clause.

The Fourth Circuit rejected this argument:

In the case before us, the "statements" in question are alleged to be the assertions that Washington’s blood sample contained PCP and alcohol. But those statements were never made by the technicians who tested the blood. The most the technicians could have said was that the printed data from their chromatograph machines showed thatthe blood contained PCP and alcohol. The machine printout is the only source of the statement, and no person viewed a blood sample and concluded that it contained PCP and alcohol. Yet, the very samedata that would have permitted the lab technicians to say that the blood contained PCP and alcohol were also seen and interpreted byDr. Levine. Moreover, those data were the only basis upon which Dr.Levine stated in court that the blood sample contained PCP and alcohol.In short, the inculpating "statement" — that Washington’s blood sample contained PCP and alcohol — was made by the machine on printed sheets, which were given to Dr. Levine. The technicians could neither have affirmed or denied independently that the blood contained PCP and alcohol because all the technicians could do was to refer to the raw data printed out by the machine. Thus, the statements to which Dr. Levine testified in court — the blood sample contained PCP and alcohol — did not come from the out-of-court technicians,and so there was no violation of the Confrontation Clause.

Wednesday, August 22, 2007

S.C. Supreme Court issues guidance on personal data identifiers in appellate filings

In an effort to protect privacy of material filed in the appellate courts, the Supreme Court has issued this order. The gist is as follows:


Parties shall not include, or will partially redact where inclusion is necessary, the following personal data identifiers from documents filed with an appellate court:

1. Social Security Numbers. If a social security number must be included, only the last four digits of that number should be used.

2. Names of Minor Children. If a minor is the victim of a sexual assault or is involved in an abuse or neglect case, the minor's name will be completely redacted and a term such as "victim" or "child" should be used. In all other cases, only the minor's first name and first initial of the last name (i.e., John S.) should be used.


3. Financial Account Numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used.


4. Home Addresses. If a home address must be included, only the city and state should be used.

Tuesday, August 21, 2007

Top 100 Power Players in SC

This is an interesting list, with more than a few lawyers listed. (Hat tip to Palmetto Scoop)

One wonders, however, how former Chief Judge William Wilkins was left off??

Ravenel Trial Delayed

ABCNEWS4.com has this story:

Jury selection was previously scheduled to take place on September 5, but a district court judge signed an order delaying the trial for Ravenel and co-defendant Michael Miller to November 8.

Friday, August 17, 2007

Fourth Circuit upholds derivative jurisdiction requirement under section 1442

In PALMER v. CITY NATIONAL BANK, a panel of the Fourth Circuit held that the doctrine of derivative jurisdiction, which requires that a federal court’s jurisdiction over a removed case mirror the jurisdiction that the state court had prior to removal, survives and is applicable to the federal officer removal statute, 28 U.S.C.A. 1442. Congress specifically eliminated the doctrine for cases removed under 28 U.S.C. § 1441, the general removal statute, but failed to make these changes to section 1442. Hence, derivative jurisdiction still lives in cases removed under section 1442.

SC prisoner sues Michael Vick for $60 billion

Check out this prisoner complaint! It is classic. I'm especially impressed that he demands the money via UPS and to be backed by gold and silver. Dude has no trust in those depreciating greenbacks. And, this is the first I've heard of Vick's affiliation with Osama bin Laden.

Wednesday, August 15, 2007

Court of Appeals holds that CDR Code cannot trump provisions of statute

In State v. Bennett, Bennett was sentenced to four years in prison for distribution of crack cocaine and ordered to submit to community supervision (CSP) thereafter. Bennett violated his community supervision and was returned to prison on multiple occasions. At one CSP hearing, Bennett finally argued that S.C. Code § 44-53-375(B)(1), under which he was convicted does not provide for CSP. Thus, he should be released from CSP. The state countered that although the statute did not provide for CSP, because the CDR Code used did provide for CSP, the offense code controlled. The Court of Appeals ruled in Bennett's favor.

Because the South Carolina Code of Laws is the controlling authority for classifications, definitions and penalties for criminal offenses, a statute listed on a sentencing sheet, and not a CDR code, will dictate a criminal’s sentence. Therefore, we find Bennett was sentenced as a first offender. Bennett’s warrant, indictment, and sentencing sheet all list S.C. Code § 44-53-375(B)(1), indicating a first offense. The additional listing of the CDR code on Bennett’s sentencing sheet, indicating a second offense, may not trump the listed statute. Due to SCDOC’s erroneous interpretation of Bennett’s sentencing sheet, Bennett has served more than the original sentence of four years and should be released from CSP.

Tuesday, August 14, 2007

Supreme Court clarifies summary judgment standard when dealing with tort of outrage

In Hansson v. Scalise Builders of South Carolina, the Supreme Court considered the application of the summary judgment standard in connection with the tort of outrage. The basis for the action was Hansson's allegations that his coworkers and supervisor constantly derided him with callous and vulgar remarks and gestures related to homosexuality. To claim outrage, a Plaintiff must show:


1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his conduct;
(2) the conduct was so ‘extreme and outrageous’ so as to exceed ‘all possible bounds of decency’ and must be regarded as ‘atrocious, and utterly intolerable in a civilized community;’
(3) the actions of the defendant caused plaintiff’s emotional distress; and
(4) the emotional distress suffered by the plaintiff was ‘severe’ such that ‘no reasonable man could be expected to endure it.’

Summary judgment was granted below but the Court of Appeals reversed. The court of appeals found that Hansson demonstrated a genuine issue of material fact regarding the element of “outrageous conduct” required for an intentional infliction of emotional distress claim. The Supreme Court granted cert and reversed the Court of Appeals. The Supreme Court held that the Court of Appeals' analysis extended only to element two of the tort and ignored elements 1, 3, and 4. Because Hansson never sought physician help, claimed only to have lost sleep at night, the Supreme Court reasoned summary judgment was proper.

Hansson failed to provide any legally sufficient evidence in this case to show that his resulting emotional distress was “severe” within the contemplation of this Court’s mental anguish jurisprudence. Assuming, without deciding, that Petitioners’ conduct was sufficiently “outrageous” to come within the ambit of intentional infliction of emotional distress, Hansson’s passing references to fairly ordinary symptoms are nonetheless insufficient to create a jury question on the damages element of his claim for intentional infliction of emotional distress.

Monday, August 13, 2007

Fourth Circuit reverses sanctions for lawyer copying juror notes after jury had been discharged

In Thomas v. Schatz, the district court reprimanded and censured Alan Thomas and Isaac Southerland, trial attorneys for Ford Motor Company, for looking at and copying jurors' noted in the jury room after the jury had been discharged. The two lawyers were in the jury room to retrieve items introduced into evidence. The district court concluded that the lawyers had violated the spirit, if not the letter,of Local Rule 47.01, which prohibits an attorney from“communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication.” . The court determined that by reading and copying the jury’s notes on the easel, the lawyers essentially communicated with the jury without the court’s permission.

The panel disagreed, noting that "Local Rule 47.01 is aimed at preventing lawyers, without permission of the court, from bothering jurors after they have completed their service by writing them or attempting to talk to them." The court noted that it had found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended. Thus, the sanctions were reversed.

Friday, August 10, 2007

More associate pay increases in the South

From Law.com:

Troutman Sanders raised associate pay $15,000 across the board in its Atlanta, Washington, Virginia and North Carolina offices Thursday, with the starting salary going from $130,000 to $145,000.

Thursday, August 09, 2007

Internal operating procedure at SCOTUS

Tony Mauro of Legal Times has a good piece up on a recent talk given by Justice Alito on the High Court's internal operations. Here is my favorite tidbit:

During oral argument, Alito said in a talk at Pepperdine University School of Law in California, his colleagues are so inquisitive that "it's extremely difficult to get a question in."

Alito said his natural tendency would be to ask a question when the lawyer arguing before the Court gets to the subject he is curious about. But because his colleagues are asking so many questions of their own, Alito said, he sometimes has to use "a strategic opportunity to get a word in edgewise," posing his own query whenever he can, whether it changes the subject or not. Alito wryly suggested that the bench may be so garrulous because the current Court contains "the greatest proportion of former law professors" in Supreme Court history.

Wednesday, August 08, 2007

Is the Fourth Circuit now the Motz Court??

Here is an interesting article from the Washington Post on the Fourth Circuit's vacancies and how the Court is no longer a bastion of conservative jurisprudence.

Motz's ascension illustrates a remarkable turnaround: The U.S. Court of Appeals for the 4th Circuit, long considered one of the nation's most conservative appellate courts, is shifting to a moderate direction with the balance up for grabs. A growing list of vacancies -- now five -- has left the court evenly divided between Republican and Democratic appointees.

With an election year approaching, experts predict the court will tilt decisively to the left if Democrats keep control of Congress and reclaim the White House.

Charleston School of Law hosts punitive damages symposium

Mark your calendars for this one. The Charleston School of Law has invited an impressive group of practitioners and academics to discuss punitive damages post Philip Morris v. Williams. The event will be held on September 7, 2007. Here is a link to the brochure. Props to Professor Sheila B. Scheuerman for organizing this event.

For anyone interested, here is my post from February giving my take on the Court's opinion.

Tuesday, August 07, 2007

Fourth Circuit grants habeas relief for counsel's failure to inform client of justification defense

In United States v. Mooney, John Mooney presented evidence in his 2255 hearing that he seized a firearm from his ex-wife in self-defense, when his ex-wife, who was intoxicated, pointed it at his head. He then walked several blocks to his place of employment to hand the weapon over to the police. Because Mooney was a convicted felon, however, he was charged with the unlawful possession of a firearm.

Counsel advised Mooney that justification provided no defense to a violation of § 922(g). Relying on counsel’s advice, Mooney reluctantly pleaded guilty, and the district court sentenced him to 180 months’ imprisonment. After an unsuccessful direct appeal, Mooney filed a timely § 2255 motion, claiming that his guilty plea was involuntary in that his counsel rendered him ineffective assistance by not investigating the justification defense and by advising him to plead guilty because there was no such defense.

The Court granted the petition. The panel found that Mooney was under unlawful and present threat of death or serious bodily injury, did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm, and that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Monday, August 06, 2007

Judge Matthew Perry to receive ABA award

Federal judge Matthew J. Perry Jr. will be honored this month with the Thurgood Marshall Award from the American Bar Association for his years of contributions to civil rights.

State circuit judge throws out evidence garnered in kiddy porn prosecution

From The State:

South Carolina Attorney General Henry McMaster is telling members of a task force that targets Internet sex predators to continue their work despite a judge's ruling that could put the cases in jeopardy.

Circuit Judge Mark Hayes ruled last month that investigators incorrectly used a federal law to get the identity of a suspect accused of trying to solicit sex from an undercover officer posing as a 13-year-old girl.

McMaster has appealed the ruling but acknowledged that most pending cases would be threatened if the decision stands.

"Frankly, it's a much worse scenario than we originally thought," said McMaster spokesman Mark Plowden. "The consequences of that order being upheld are dire."

The judge's ruling came in the case of 33-year-old former prosecutor Anthony Clark Odom, who was charged with criminal solicitation of a minor after authorities said he used the Internet to try to entice what he thought was a 13-year-old girl to have sex with him.

Hayes ruled the federal law authorities used to get subscriber information from Odom's phone company and Internet provider was not supported by South Carolina law, and he wouldn't allow the information to be used at Odom's trial. Prosecutors said they need the information to link Odom to the online chats.

The federal law only requires a judge to sign a document. Hayes ruled state law requires a higher standard, including probable cause and submitting a sworn oath, to obtain similar evidence.

The task force made its 85th arrest Thursday - 75-year-old Donald Joseph Murphy of North Charleston was charged with one count of criminal solicitation of a minor.

Of the previous arrests, 24 have resulted in guilty pleas and two defendants have been found guilty at trial, Plowden said.

In his letter to the task force, McMaster noted that the use of the federal "d-order" has been upheld by another South Carolina Circuit Court judge.

"No one can guarantee the outcome of an appeal, but I am confident that our d-order process is sound and will continue to utilize it vigorously to prosecute these sexual predators of children," McMaster wrote.

Friday, August 03, 2007

S.C. Court of Appeals affirms that statute of repose is "substantive" for choice of law issues

In Nash v. Tindall Corp., plaintiffs were injured when a bridge collapsed in North Carolina. Tindall defended on the grounds that the suit was barred by North Carolina's statute of repose. Plaintiff countered that that South Carolina law, not North Carolina law, should be applied in this case. The Court of Appeals disagreed, holding that the substantive law of the place of the injury applies and that a statute of repose creates a substantive right in those protected to be free from liability after a legislatively-determined period of time.

Wednesday, August 01, 2007

South Carolina Supreme Court Issues Warrantless Search Opinion

In State v. Weaver, Weaver argued that evidence found in a Jeep should have been suppressed because it was searched without a warrant. The Supreme Court disagreed and held that there was probable cause to conduct a warrantless search of the Jeep. Investigators knew that Weaver, a suspect in McKnight’s murder, had been seen driving the Jeep around the time of the murder. Upon finding the Jeep, it seemed apparent there had been an attempt to destroy evidence given the Jeep’s interior was wet and smelled of bleach. Therefore, upon finding the Jeep, the investigators could have conducted the search at that time; however, they chose to impound the vehicle and search it later. The fact investigators chose to wait to search the Jeep after it had already been impounded did not affect the propriety of the warrantless search because there is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.

Tuesday, July 31, 2007

S.C. Supreme Court issues Constitutional Standing Opinion

In Smiley v. SCDHEC, DHEC’s Office of Ocean and Coastal Resource Management (OCRM) issued a permit to periodically excavate sand from the public intertidal beach at the Isle of Palms, if and when erosion occurs, and to transport the sand to Wild Dunes’ private property. Smiley challenged the permit, arguing that he takes exercise on the beach in front of his house because of a spinal cord injury and that the intrusion of heavy equipment into the public beach and the consequent excavation of sand from the intertidal zone would make it impossible to jog on the beach in the affected area. The Court of Appeals held that there was no standing because there was not actual or imminent harm inasmuch as no excavation had occurred. The Supreme Court reversed.

The Court noted that no sand need to have been moved yet for there to be an injury. The Court of appeals had essentially erased "imminent" from the "actual and imminent" requirement of Lujan v. Defenders of Wildlife.

Monday, July 30, 2007

Fourth Circuit reverses grant of SC PCR relief for failure to request plain meaning charge for "life imprisonment"

In WILLIAMS v. OZMINT, Williams filed two applications for state post-conviction relief, the second of which was granted by the circuit court (PCR court). The PCR court concluded that Williams was denied effective assistance of counsel because his trial counsel failed to request a jury instruction that the term "life imprisonment" should be understood in its ordinary and plain meaning. According to the PCR court, the instruction was necessary to ensure that the jury understood the nature of its life imprisonment option. The PCR court therefore granted Williams a new sentencing proceeding. The state then petitioned the Supreme Court of South Carolina for a writ of certiorari, and that court reversed the decision of the PCR court. Although the state supreme court concluded that Williams’s counsel was ineffective for failing to request a plain meaning instruction, it ultimately determined that Williams was not prejudiced

Next, Williams filed a petition for a writ of habeas corpus in U.S.District Court, and that court granted relief. First, the district court agreed with the Supreme Court of South Carolina that Williams’s counsel was ineffective for failing to request a plain meaning instruction. Second, the court determined that counsel’s ineffectiveness "was reasonably likely to have affected the outcome of [Williams’s] capital sentencing hearing" because, among other things, Williams’s "prior history contained a number of mitigating factors," including no criminal record.

The Fourth Circuit reversed. The panel concluded that the Supreme Court of South Carolina did not unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), when it determined that Williams’s defense was not prejudiced by the lack of a plain meaning instruction. The aggravating factors found by the jury (two murders and a financial motive) are not ones that indicate that the jury was concerned about how long Williams would serve if he received a life sentence or whether he would be a danger to society if he was paroled at some future date. There was no indication in the record that a plain meaning instruction would have prompted the jury to give more weight to the mitigating evidence. The aggravating factors — a double murder planned in cold blood for financial gain — simply outweighed the mitigating factors, such as bond compliance and lack of a prior criminal record.

Thursday, July 26, 2007

Wednesday, July 25, 2007

South Carolina Treasurer Thomas Ravenel resigns

WBTV has this story on the resignation amid drug charges .

Tuesday, July 24, 2007

Bar due are going up

From the Court:

The South Carolina Bar has proposed amending Rule 410(c)(2), SCACR, to increase the annual license fee for active members by $55. Additionally, because the Legislature has repealed S.C. Code Ann. § 40-5-30, the Bar is no longer required to deposit fees with the State Treasurer. Therefore, the Bar requested that the provision in Rule 410(c)(2) be deleted.

We grant the Bar's request to amend Rule 410(c)(2), SCACR, as set forth in the attachment to this Order. The amendments are effective immediately.

S.C. Supreme Court holds that mechanic's lien cannot attach if the contractor's work was for landscaping purposes

In Skiba v. Gessner, contractor performed work for the purpose of preparing the lot for landscaping. The work was not related to a building or structure. When contractor did not get paid he put a mechanic's lien on the property. S.C. Code Ann. § 29-5-10(a) states that for a person to have a mechanic’s lien, the person must perform or furnish labor or furnish materials that are “actually used in the erection, alteration, or repair of a building or structure upon real estate.” Section 29-5-10(a) provides that the “labor performed or furnished in the erection, alteration, or repair of any building or structure upon any real estate includes the . . . work of making the real estate suitable as a site for the building or structure.”

The Supreme Court held that no lien could attach because the contractor's work was completed for the purpose of preparing the land for landscaping and not in connection with the erection, alteration, or repair of a building or structure.

Monday, July 23, 2007

Federal judge rejects tax payer demand for use of school web site

From MyrtleBeachOnline.com:

A federal judge Friday sided with a Columbia-area school district in a First Amendment dispute with a taxpayer over use of the Internet to communicate a political point of view.

Judge Cameron Currie rejected Randy Page's contention that as a Lexington 1 resident, he should be allowed to have his views posted on the school system's Web site, which has been used to convey official positions on public-policy issues.

Vick came to South Carolina for Dog Fights

News Channel 15 has this report about Ron Mexico's (er uhh Vick's) activities in South Carolina.

Thursday, July 19, 2007

White House Nominates Conrad to take N.C. seat on the Fourth Circuit

From the Citizen-Times:

The White House on Tuesday nominated Robert J. Conrad Jr. as a judge on the U.S. Court of Appeals for the Fourth Circuit.

Conrad has been chief judge on the U.S. District Court for the Western District of North Carolina since 2006 and previously was a partner at the global law firm Mayer, Brown, Rowe & Maw

Conrad also served as the U.S. District Attorney in North Carolina and headed the Campaign Finance Task Force at the Justice Department between 1999 and 2001.

“Bob Conrad has a long history of public service and an excellent reputation as a knowledgeable and fair judge,” said Sen. Richard Burr, R-N.C. “I look forward to Bob’s quick confirmation by the United States Senate and to having another North Carolinian on the Fourth Circuit bench.”

Effect of Judge Widener's Decision to Take Senior Status

The Maryland Daily Record has this article up on Judge Widener's decision. Here are a couple of snippets:

Now, it’s split down the middle,” said William J. Watkins Jr. of Womble Carlyle in South Carolina, who broke the news on his law firm’s blog Wednesday morning. “If Bush can’t fill the seats then his successor — which I assume will be a Democrat — can really change the tenor of the court.”

. . . .

“I think the president’s lost the opportunity to make this a more conservative court, given the timing now and who is in the Senate,” said Carl W. Tobias, Williams Professor of Law at the University of Richmond School of Law.

Wednesday, July 18, 2007

Fourth Circuit Judge H. Emory Widener Jr. Takes Senior Status

Reliable Sources have informed me that Judge H. Emory Widener Jr. of the Fourth Circuit has advised the White House that he is taking Senior Status. In 2001, Judge Widener announced he would take Senior Status as soon as a replacement was confirmed. Jim Haynes was nominated to take that slot, but Senator Graham and and Senate Democrats blocked the nomination. Now, Judge Widener is taking Senior Status effective immediately.

Judge Widener graduated from the US Naval Academy in 1944 and has served with distinction in the United States Navy. In 1953 he received his law degree from Washington and Lee University. After serving three years as a district judge, President Nixon appointed him to the Fourth Circuit in 1972. Judge Widener has been a solid conservative vote on the Fourth Circuit and he will be missed. I had the privilege to argue in front of him just last fall. He is a true gentleman and we can only hope a worthy successor will soon be appointed.

With this news, the Fourth Circuit is roughly divided as follows:

Conservative: Judge J. Harvie Wilkinson III, Judge Paul V. Niemeyer, Chief Judge Karen J. Williams, Judge Dennis W. Shedd.

Moderate: Judge William B. Traxler, Jr. (leans right), Judge Allyson K. Duncan (leans left)

Liberal: Judge M. Blane Michael, Judge Diana Gribbon Motz, Judge Robert B. King, Judge Roger L. Gregory

Labels are difficult, depending on the issue and I by no means use the labels as disparagement. I personally am a bit conservative, but I would be honored to have solid judges such as M. Blane Michael or Robert B. King on any panel. Liberal or not, they are respectful to the lawyers, fastidious in preparation, and work very hard to be fair.

However, one need not be a mathematical genius to see that conservative and liberal votes are evenly divided. Ninth Circuitesque decisions that in the past would be en banced and "fixed" are now up in the air. What once was a conservative court is no more. There are five seats open, and to my knowledge, only Conrad has been officially nominated to fill a vacancy. The White House best get moving!

SCOTUS backs off disclosure rule for amicus curiae

SCOTUS had proposed a new rule that would have had the effect of requiring amicus filers to disclose if parties or their counsel were members of the amicus group or had helped finance the brief. The aim was to prevent parties to get two bites at the apple -- one, a brief filed by the party itself and the second, a brief filed by an amicus group but written or financed by the party. But, according to Law.com, amicus groups across the spectrum protested that the rule would invade the cherished privacy of their membership rosters. Former members of the solicitor general's office also protested that the rule as written originally would have required government lawyers to reveal, for example, whether they paid dues to the American Civil Liberties Union or the National Rifle Association.

Tuesday, July 17, 2007

S.C. Supreme Court reverses Court of Appeals in negligent entrustment case

In Gadsen v. ECO Services, the Court of Appeals affirmed the denial of a directed verdict in a negligent entrustment case when an ECO employee drank a couple of wine coolers with friends and later one of the friends (John) drive the company vehicle. The vehicle then suffered a traffic accident. The sole evidence supporting the claim for negligent entrustment against Petitioner is the fact John had one or two wine coolers prior to driving. According to the Supreme Court:

Knowledge that a driver has had a drink or two is a far cry from meeting the first element of negligent entrustment that there be knowledge of or knowledge imputable to the owner that the driver was either addicted to intoxicants or had the habit of drinking. Viewing the evidence in the light most favorable to Respondents, there was no support for the contention Petitioner, or even Respondent, for that matter, knew John was intoxicated; nor was there evidence Petitioner knew John had a habit of being intoxicated and driving.

Friday, July 13, 2007

Judge Cooper declines to reconsider ruling in school funding case

Greenville Online has this news article.

Law schools create unrealistic hopes for graduates

I smell a class action suit coming:

The news is filled with record-breaking employment figures for law school graduates and first-year salaries of $160,000 at many top law firms. But all those stories may be creating unrealistic hopes for the majority of law school students. Most law graduates entering private practice are making far less -- between $40,000 and $45,000 their first year. Contributing to high expectations is the effort by law schools to portray their employment numbers as robustly as possible to boost their ranking scores. (From Law.com).

Thursday, July 12, 2007

Ladies' night could be a thing of the past

This is what happens when radical egalitarianism runs amuck. According to a lawsuit filed in New York, night clubs violate the 14th Amendment when they sponsor "Ladies' night" whereby women receive discounts on admission and drinks. It seems that the state action involved is the application for and possession of alcohol permits by the clubs.

This jerk claims he is helping vindicate the equal rights of men, but he is really just screwing us. Ladies' night was always a good thing for men--it meant more women would be at the club. No more. In the name of equality, no more.

Wednesday, July 11, 2007

Fourth Circuit Slipping Away From Conservative Bent

Law.com has this article on the Fourth Circuit and why it is not so conservative any more.

Fourth Circuit holds that creditor may "preserve" unpaid principal by allocating payment to interest in bankruptcy proceeding

In IN RE: NATIONAL ENERGY & GAS TRANSMISSION, the Fourth Circuit considered whether a creditor may allocate a payment made by a non-debtor guarantor first to interest then to principal, thus preserving the unpaid principal for collection in bankruptcy. At base, Liberty sought to collect $17 million from ET Power notwithstanding the fact that it has already received the full value —$140 million — of the debt which it was owed by ET Power on the petition date. Liberty argued that the additional $17 million was really unpaid principal inasmuch as it applied the payment of $140 million first to interest then to principal. The Fourth Circuit disallowed the claim:

We believe that § 502(b)(2) prevents Liberty from collecting the additional $17 million it seeks despite Liberty’s classification of that amount as principal. On the date the debtors filed their bankruptcy petition, the Agreement was effectively rejected and Liberty sustained damages, although the value of the damages was then unknown and disputed. Subsequently, through arbitration, Liberty’s damages were determined to be $140 million. Thus, Liberty’s damages and ET Power’s debt to Liberty on the petition date was $140 million, and by the terms of § 502(b)(2), Liberty could not collect in bankruptcy any additional amounts added due to the accrual of interest.

Tuesday, July 10, 2007

Excuses for Jury Service Not Good Enough

From CNN.com:

A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.

Daniel Ellis' excuses to try to get out of jury duty didn't sit well with the judge.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

. . .

Here's a portion of the transcript:

You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.
"I'm sorry?" Nickerson said.


"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.


Nice way to earn a perjury charge. Guess he will be appearing in front of a jury rather than serving on one.
Recent deaths of family court judges leaves backlog of cases

The State has this news story on the vacancies and case overload.
S.C. Supreme Court reprimands lawyer in Graniteville case

The South Carolina Supreme Court on Monday reprimanded a Louisiana-based lawyer who set up an office in South Carolina following a deadly train derailment and described himself as a "neighborhood attorney" in local advertisements. Douglas M. Schmidt, a lawyer for more than 300 people who claim they were injured after a Norfolk Southern train derailed and released chlorine in January 2005, was reprimanded for breaking several attorney conduct rules. Among other things, Schmidt sent solicitation letters claiming to be a "neighborhood lawyer" (I guess the Big Easy is in "the neighborhood" of SC on a global scale) and claimed expertise in areas where the Supreme Court awards no certification.

The Court's opinion can be found here. This is ambulance chasing at its wost. Nice way to represent the profession. Geez.

Monday, July 09, 2007

Fourth Circuit holds that the South Carolina Regulation of Manufacturers, Distributors and Dealers Act does not extend to sales consummated in another state

In CAROLINA TRUCKS v. VOLVO TRUCKS, the Fourth Circuit considered a South Carolina statute providing that a vehicle manufacturer generally "may not sell, directly or indirectly, a motor vehicle to a consumer in this State," except through its authorized franchises. A South Carolina dealer argued that the statute forbade sales to South Carolina consumers by an out-of-state manufacturer that were consummated in Georgia. The Fourth circuit rejected an interpretation of the statute that would prohibit a South Carolinian from traveling to Georgia and purchasing a vehicle.

South Carolina rules of construction provide that statutes must not be read to operate outside the state’s borders. The South Carolina Supreme Court has written repeatedly that South Carolina statutes"have no extraterritorial effect."


The Court further held that just because a Georgia dealer might advertise in South Carolina does not mean that part of the "sale" actually occurred in South Carolina. Accordingly, the panel reversed a half million dollar jury verdict in favor of Carolina Trucks.