S.C. Court of Appeals gives guidance in valuation of physician practices

In Keane v. Lowcountry Pediatrics, the Court of Appeals reversed a trial court order calculating the share value of the practice by including good will. According to the Court of Appeals, South Carolina courts should not, in valuing a professional association, include the goodwill of the professional because of its speculative nature and the fact that goodwill 'attaches solely to the person of the professional man or woman as a result of confidence in his or her skill and ability and does not possess value or constitute an asset separate and apart from the professional's person.' Absent a contractual provision, good will should not be included in a share price.

S.C. Supreme Court decides scope of state's DNA identification statute

In Cannon v. South Carolina Department of Probation, the Supreme Court considered whether the South Carolina Deoxyribonucleic Acid (DNA) Identification Record Database Act required Cannon, as a condition of his parole, to submit a DNA sample to the state's database. The statute at issue provided that: "A person convicted . . . before July 1, 2000, who is serving a probated sentence or is paroled on or after July 1, 2000, for: [one or more enumerated crimes]." Cannon was paroled in 1983. He argued to the trial court that the word "paroled" refers to an individual who is "released to parole" on or after July 1, 2000, and that because he was released to parole prior to that day, the Act did not apply to him. The trial court found that such a construction of the word "paroled" would limit the statute's operation and would be destructive of its intent. The court found it was the intent of the legislature to include all individuals currently paroled in the database.

The Supreme Court reversed. The Court held that the plain wording of the statute indicates the word "paroled" refers to an individual who is "released to parole" on or after July 1, 2000.

South Carolina House of Representatives considers banning citizens from discussing ethics complaints

South Carolina citizens who file an ethics complaint against a legislator would be banned from discussing, or even mentioning, the complaint publicly if a bill under debate in the state House becomes law. Here is the proposed language:

All investigations, inquiries, records, proceedings, and accompanying documents related to a complaint are confidential unless the respondent requests, in writing, to waive confidentiality or the ethics committee renders a public opinion. A person connected with a complaint before the ethics committee shall not disclose the existence of the complaint and any related information and proceedings nor discuss any related testimony or evidence except to persons directly involved, and then only to the extent as necessary for the proper disposition of the matter.

Perhaps the legislators need to take a look at the First Amendment or maybe Article II of the State Declaration of Rights:

The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government or any department thereof for a redress of grievances.

Universities Adjust to State Affirmative Action Bans

Over at Findlaw.com, Michael Dorf has an essay up dealing with state bans on discrimination/affirmative action and efforts of law schools and other institutions to comply or maneuver around the bans. (Hat tip How Appealing).

Fourth Circuit holds in ADA case that remedial decree may not be imposed on City of Richmond

In Bacon v. City of Richmond, the Richmond School Board agreed in a settlement agreement to brings its schools into compliance with the ADA. The Settlement Agreement, however, provided that the School Board's obligations were "contingent on" the School Board "receiving funding from the City of Richmond." The City objected because the Board was vested with authority over the schools and thus the ADA violations were not the fault of the City. The obligation placed on the City in the Settlement Agreement brought it into the case, with the district court ultimately ordering the City to "ensure that the Richmond City Public Schools become ADA-compliant" within five years.

The Fourth Circuit overturned the district court's order. According to the panel, the district court's remedial order undermines the basic precept of law that remedies may be imposed only on responsible parties. Injunctive relief may not issue where, as here, the City played no part in depriving any plaintiff of the rights guaranteed by the ADA.

SCOTUS strikes down California sentencing law

In Cunningham v. California, SCOTUS determined that California's "determinate sentencing law" is unconstitutional inasmuch as it permits a judge and not a jury to find facts leading to higher sentences. According to the majority, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.

S.C. Supreme Court holds that criminal defendant has the burden of proving duress

In State v. New, New argued that another inmate had threatened him and therefore he was under duress when he participated in the taking of hostages at a correctional facility. He argued that the state had the burden of disproving his duress defense just like it would a self-defense assertion. The trial court and the state supreme court disagreed. According to the court, duress excuses the crime but does not negate any element of the offense, whereas self-defense goes to an element of the crime. Because "the existence of duress normally does not controvert any of the elements of the offense itself," the burden remains on the defendant.

S.C. Supreme Court offers guidance on when a matter is stayed on appeal

In Arnal v. Fraser, the Supreme Court offers guidance on when a matter is stayed under the appellate court rules. Rule 225(a), SCACR, in governing matters which are stayed while on appeal, provides:

As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree. This automatic stay continues in effect for the duration of the appeal unless lifted by order of the trial judge, appellate court, or judge or justice thereof. The lower court retains jurisdiction over matters not affected by the appeal including the authority to enforce any matters not stayed by the appeal.

This case dealt with several orders of the family court that Father argued were void because the family court was without jurisdiction. Father's first argument dealt with enforcement of a order requiring him to make payments to Mother. Although this order was appealed, the Supreme Court pointed out that family court orders regarding a child or requiring payment of support for a spouse or child's are exceptions to the automatic stay. Rule 225(b)(6), SCACR. Hence, the was jurisdiction in the family court.

The next issue dealt with medical expenses for the child. The issue of apportioning medical expenses from the final divorce order was on appeal, but Father asked the family court to determine whether the medical expenses previously submitted by Mother were subject to the provisions of the final order. This issue could be addressed by the family court because the court was not modifying the order on appeal.

Father next argued that the family court lacked jurisdiction to order him to pay certain educational expenses. The amended final order on appeal did not address educational expenses, thus these matters were not affected by the appeal, and the family court had jurisdiction to issue its orders.

Finally, Father argued that the family court erred in terminating his overnight visitation for failing to meet the videotaping requirements mandated by the family court. The final divorce order on appeal set very specific parameters for Father's visitation. Thus, the family court did not have jurisdiction to modify terms of visitation because the appellate court would have exclusive jurisdiction over the matter on appeal.

S.C. Supreme Court issues opinion on unauthorized practice of law

In Franklin v. Chavis, an insurance salesman drafted a will, power of attorney, and Renunciation of Administration on behalf of an elderly woman. Not surprisingly, the documents gave salesman a hefty cut of the estate. Regarding the will and power of attorney, the court held that the salesman engaged in the unauthorized practice of law. Key to the court's finding was that the salesman acted as more than a scrivener when he filled out these computer generated forms.
According to the Court: "There is no evidence Ms. Weiss reviewed the will once it was typed. The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form."

The completion of the Renunciation of Administration was not the practice of law. This was a probate court form with handwritten information filled in the blanks. While these forms do have legal implications, the Court described them as "straight-forward" and "provided to the public."

Fourth Circuit affirms CMS' denial of West Virginia Medicaid amendment

In STATE OF WEST VIRGINIA v. THOMPSON, West Virginia appealed a decision by the Secretary of Health and Human Services denying approval of an amendment to West Virginia's Medicaid Plan. Federal law requires that states participating in Medicaid recoup some costs by recovering funds from the estates of recipients of Medicaid-funded long-term care. It also requires that states establish procedures to waive recoveries that "would work an undue hardship as determined on the basis of criteria established by the Secretary." West Virginia sought to exempt more than $50,000 of every homestead from recovery, through an exemption for home equity up to the statewide mean appraised value of a home. The Secretary disapproved this exemption as too broad to constitute an "undue hardship" exception.

Giving the agency interpretation Chevron deference, the Fourth Circuit affirmed. The panel found nothing arbitrary or capricious about the Secretary's conclusion that West Virginia's waiver was so broad that it would serve not as an exception to estate recovery for hardship cases but as a means of unraveling the estate recovery mandate itself: "What has been represented as a hardship exemption for 'homesteads of modest value' would apply to every homestead, regardless of value, and without any means-testing of the recipients. It was not a clear error of judgment for the Secretary to conclude that a provision this broad sweeps beyond cases of 'undue hardship' and sets threshold levels for the market value of a homestead of modest value so as to negate the intent of the estate recovery program that Congress enacted."

Fourth Circuit vacates upward sentencing variance

In United States v. Tucker, Tucker pled guilty to embezzling funds from her employer. The advisory guidelines range was 24 to 30 months' imprisonment and three to five years' supervised release. The district judge determined that an upward variance was appropriate because she had been convicted of embezzlement before and was using stolen money to pay restitution for previous convictions. The district court ultimately imposed a variance sentence of 144 months, followed by a five year term of supervised release during which Tucker would pay restitution of $77,223.83 for this offense. The sentence also requiredTucker to participate in a mental health treatment program and not to obtain employment in which she would have access to her employer's funds during the five year period of supervised release.

The Fourth Circuit vacated the sentence. Although Tucker's risk of recidivism could justify a variance sentence, the district court did not adequately justify the extent of the variance imposed.

Court of Appeals holds new trial should have been granted because of juror misconduct

In Church of the Holy Cross v. Orkin, the Court of Appeals reversed a trial court's decision denying a mistrial based on juror misconduct. The case centered on whether Orkin breached a contract with the church by allowing a termite infestation. The offending conduct of the juror was as follows:

the alleged misconduct, which the alternate juror later confirmed under oath, consisted of the offending juror "early in the trial . . . question[ing] aloud the instructions that she was not to talk about the case . . . because everybody knew what was going on"; commenting to the other jurors "that everyone knew that the historic people 'have money' and are simply trying to get someone else to 'pay their bills'"and "that 'old buildings fall down' simply because of age"; telling the other jurors "that she did not know why she had to hear both sides of the case and that she had discussed it with her mother who reaffirmed that the historic people have money and should clean up their own mess" remarking to the other jurors that she had talked with a painter friend who told her that walls could collapse due to hidden termite damage; declaring to the other jurors "that they should tear down the church and bring in a double wide";

The prohibition against jurors discussing a case until the trial judge submits it to them for deliberation and decision involves a matter of fundamental fairness. The prohibition is meant to insure that jurors remain impartial throughout the entire trial and that they hear both sides of a controversy before making up their minds and rendering a verdict. Based on the misconduct, fundamental fairness was denied and thus a new trial should have been granted.

S.C. Court of Appeals clarifies types of expert testimony subject to the Jones factors

In State v. White, the Court of Appeals considered whether the trial court erred in admitting the testimony of State's expert witness, a dog handler, without establishing the underlying scientific reliability of dog tracking. In considering the admissibility of scientific and technical evidence, South Carolina courts look to the Jones factors: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.

In this case, the court of appeals emphasized that not all expert testimony is subject to a Jones analysis. A trial court's threshold inquiry, according to the court, is whether the expert's methods and techniques even fall within Jones' central purpose: to prevent the aura of infallibility which surrounds "scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom" from misleading the fact finders. The dog handling evidence was based on "specialized knowledge" and thus a Jones analysis was not warranted because "scientific techniques" are inapplicable to the type of evidence offered.

Fourth Circuit reverses previous case law on continuing violation doctrine

In Gilliam v. Department of Juvenile Justice, Gilliam brought a Title VII action alleging that she was subjected to a hostile work environment because of her race. Summary judgment was granted in favor of the DJJ in the district court. The main issue on appeal was whether the district court erred in ignoring the entire scope of the hostile work environment claim, including behavior alleged outside the statutory time period, in accessing the timeliness of Gilliam's claim.

At base, Gilliam argued that National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) overruled Fourth Circuit case law holding that in order to pursue a continuing violation theory, at least one act occurring within the statutory period must--when viewed in isolation--be based on race. The panel agreed with Gilliam:

Contrary to the SCDJJ's contention, Morgan explained that a hostile work environment claim normally "occurs over a series of days or perhaps years" and certain behavior may not alone constitute acts of discrimination under Title VII. Under Morgan, an incident falling within the applicable limitations period need only, in order for the continuing violation doctrine to apply, have contributed to the hostile work environment. The district court thus erred in assessing the August 31 Acts in isolation, seeking to determine if any of them, standing alone, was discriminatory in nature. Under the continuing violation doctrine, none of the August 31 Acts had to be discriminatory in and of itself. It was only necessary for one of these acts to contribute to the behavior relating to the incidents thatoccurred prior to the limitations period.

The panel, however, upheld the grant of summary judgment because it reasoned that regardless of whether the district court properly considered the incidents that occurred prior to the limitations period, Gilliam had not shown that her alleged harassment was based upon race.

This cases was argued by me as amicus curiae for appellant.

Paul Clement Stays Cool in High Court Hot Seat

Findlaw.com has this article up on U.S. Solicitor General Paul Clement. Here is a taste:


Nimble on his feet and smoothly conversational with the justices, Clement has won three-fourths of the 38 cases he has argued since joining the U.S. Department of Justice in 2001 (some are still pending). He argues without notes, but can rattle off the most obscure citations from memory -- even when defending a 1,400-page lower court decision, as he did in the campaign reform case of McConnell v. FEC. And he has a knack for offering the Court a clear, if narrow, path toward seeing a case his way. "I am so glad he is solicitor general, because he makes my job easier," Justice Antonin Scalia said during a Georgetown Supreme Court Institute tribute for Clement in April, adding that among his fellow justices, Clement was the "sentimental favorite" for replacing Theodore Olson as SG in 2005.

Interview with Chief Justice Roberts

Jeffrey Rosen has this interview with the Chief in this month's Atlantic Monthly. (Hat tip How Appealing). Here is a taste:

Despite his concern about separate opinions, Roberts was proud of his relative success in encouraging unanimity, especially in less visible cases. He seemed especially frustrated, therefore, by the media's focus on the number of high-profile 5–4 decisions and the shifting coalitions that had determined them. "There was a question from one of these [tour] groups that come in here: 'How do you decide who's going to be the swing vote?'" Roberts laughed and shook his head. "I don't know, we rotate. That has to undermine--that's a steady wasting away of the notion of the rule of law, a personalization of it."

Fourth Circuit declines to suppress evidence from password protected computer files

In United States v. Buckner, Buckner appealed from an order denying his motion to suppress evidence gathered from password-protected files on the harddrive of a computer police seized from his home. The officers seized and searched the computer, without a warrant, on the basis of oral consent granted by Buckner's wife, Michelle. Buckner argued that although Michelle's consent sufficed to give the officers permission to search the computer itself, her consent could not extend to his password-protected files. The Fourth Circuit affirmed the ruling of the lower court because Michelle did have apparent authority to consent to the search of these files.

According to the panel, the Government need not establish that Michelle had actual authority to consent to a search of Buckner' s password protected files. It is sufficient that Michelle had apparent authority to consent to the searched issue. That is, the facts available to the officer at the moment warrant a person of reasonable caution in the belief that the consenting party had authority.

Fourth Circuit holds that domestic partners are not in employer-employee relationship under FLSA

In Steelman v. Hirch, the parties were romantic partners who exchanged vows, lived together, and worked side by side in a dog-grooming business known as "Hair of the Dog" in Asheville, North Carolina. They supported themselves from the business' proceeds. The bliss between the two women soon ended and a lawsuit was filed. Steelman sought an ownership share in Hair of the Dog and compensation for work that she alleges was performed in reliance on Hirsch's promises of additional compensation, in addition to or in lieu of damages under the Fair Labor Standards Act (FLSA) and the North Carolina Wage and Hour Act. The district court granted summary judgment to the defendant on the sole federal cause of action--the FLSA claim-- and dismissed the state law claims without prejudice after it declined to exercise supplemental jurisdiction. The Fourth Circuit affirmed.

According to the panel, the plaintiff could not be adjudged an "employee" for purposes of the FLSA . The intended lifetime partnership she described was not "the bargained-for exchange of labor for mutual economic gain that occurs in a true employer-employee relationship." The couple saw their work together as a way to improve an economic future that they intended to share in perpetuity, rather than as a transfer of one individual's assets to another in exchange for labor. Hence, without an employer-employee relationship, FLSA did not apply.

S.C. Supreme Court holds that evidence of prison conditions are inadmissible in sentencing phase of trial

In State v. Burkhart, during the sentencing phase of trial, Burkhart objected to testimony by State's witness James Sligh, Director of Inmate Classification for the Department of Corrections, regarding the privileges available to an inmate who receives a sentence of life without parole. These privileges include access to the yard, work, education, meals, canteen, phone, library, recreation, mail, television, and outside visitors. The Court held that this testimony violated the long-standing rule that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime. However, the Court did note that evidence regarding a defendant's adaptability to prison life is clearly admissible, just not general testimony about prison conditions. The sentence was vacated and remanded for resentencing.

S.C. Supreme Court holds that DOT Commissioners must resign

In Sloan v. Hardee, several DOT Commissioners served their appointed four year terms and were reelected to serve second terms. Sloan brought suit arguing that the reelection violated statutory provisions prohibiting Commissioners from serving more than one consecutive term. The Commissioners argued that the term "consecutive," permits a commissioner to serve one term, consecutive to a first term such that the commissioners may actually serve two successive terms. The Court rejected this interpretation, holding that "consecutive" means "successive; succeeding one another in regular order; to follow in uninterrupted succession." Hence, the commissioners were serving consecutive terms in violation of the statute.

No Blogging Jan 8-10

I'll be on vacation Jan. 8-10. See you then.

SCOTUS to hear dormant commerce clause case

Here is a great article on United Haulers v. Oneida-Herkimer Solid Waste Management Authority, which SCOTUS will take up next week. (Hat tip How Appealing).

Harriet Miers out as White House Counsel

The Washington Post has the scoop.

FOIA documents reveal Rehnquist's battle with prescription painkillers

This is from CNN.

Also detailed in the declassified file was Rehnquist's 1981 hospital stay for treatment of back pain and his dependence on powerful prescription pain-relief medication.

The FBI investigated his dependence on Placidyl, which Rehnquist had taken for at least 10 years, according to a summary of a 1970 medical examination.

When Rehnquist checked into a hospital in 1981 for a weeklong stay, doctors stopped administering the drug, causing what a hospital spokesman at the time said was a "disturbance in mental clarity."

The FBI file, citing one of his physicians, said Rehnquist experienced withdrawal symptoms that included trying to escape the facility and discerning changes in the patterns on the hospital curtains. The justice also thought he heard voices outside his room discussing various plots against him.

The doctor said Placidyl is a highly toxic drug and that she could not understand why anyone would prescribe it, especially for long periods.

ACLU vows to sue Oconee County Council for opening public meetings with prayer

From WYFF: "Were going to take this as far as we need to," ACLU attorney Neil Caesar said. "Oconee county council has decided over the past year they were going to be the poster child of thumbing their nose at the law and that's unfair."

Judge Won't Stop Greenville Smoking Ban

Judge John Few on Tuesday declined to honor a request by a group of restaurant and bar owners who want enforcement of Greenville's new ban on smoking in public places to be delayed while they challenge it in court. Judge John Few refused to issue an injunction, but said he would rule on the merit of the business owner's case within the next 10 days.

MSNBC has this news article.

Judicial pay creating a constitutional crisis???

This is from CNN. I know Roberts is a smart man, but how must this sound to Joe Six-Pack? $165,000 per year is too little for a federal judge???

Pay for federal judges is so inadequate that it threatens to undermine the judiciary's independence, Chief Justice John Roberts says in a year-end report critical of Congress.

Roberts said the judiciary will not properly serve its constitutional role if it is restricted to people so wealthy that they can afford to be indifferent to the level of judicial compensation, or to people for whom the judicial salary represents a pay increase.

Issuing an eight-page message devoted exclusively to salaries, Roberts says the 678 full-time U.S. District Court judges, the backbone of the federal judiciary, are paid about half that of deans and senior law professors at top schools.

In the 1950s, 65 percent of U.S. District Court judges came from the practicing bar and 35 percent came from the public sector. Today the situation is reversed, Roberts said, with 60 percent from the public sector and less than 40 percent from private practice.

Federal district court judges are paid $165,200 annually; appeals court judges make $175,100; associate justices of the Supreme Court earn $203,000; the chief justice gets $212,100.