Consultation with counsel during trial testimony is constitutionally permitted

The Second Circuit has held that a restriction on a criminal defendant's right to discuss his testimony with his attorney can violate the Sixth Amendment. In this case, the defendant was being cross examined and the court recessed until the following morning. The court prohibited defense counsel from discussing the testimony with his client.

In United States v. Andrews, 05-2630-cr, Judge Guido Calabresi wrote for the circuit that a "defendant's constitutional right to consult with his attorney on a variety of trial-related issues during a long break, such as an overnight recess, is inextricably intertwined with the ability to discuss his ongoing testimony. Thus, a ban on discussing testimony during a substantial recess does materially impede communication of a 'constitutional quality.'"

White House and Senators at odds over Fourth Circuit Nomination

Well, we are almost in June have no nominee for Chief Judge Wilkins' seat. The word on the street is still that Steve A. Matthews and state Court of Appeals Judge John W. Kittredge are the two real contenders. The State Newspaper is reporting that "Matthews is being pushed by Fred Fielding, chief counsel to President Bush, while U.S. Sens. Lindsey Graham and Jim DeMint prefer Kittredge, sources said."

Let's just hope that Dubya and the two senators move on this soon. Both are excellent candidates for the position. Matthews is one of the brightest lights in the South Carolina Bar and Judge Kittredge was one of the state's top trial judges and has distinguished himself on the state Court of Appeals.

We're lucky to have a man like Kittredge on the bench and can only hope that Matthews, if not elevated to Judge Wilkins' seat, will soon ascend to the bench as well.

SCOTUS rejects paycheck accrural rule in Title VII cases

A Title VII plaintiff must also file a charge with the Equal Opportunity Employment Commission either 180 or 300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C.A. § 2000e-5(e)(1). In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, the United States Supreme Court was careful to differentiate between discrete discriminatory acts and hostile work environment claims. The Court made clear that what constitutes an unlawful employment practice and when an unlawful practice has occurred will differ for discrete discriminatory acts and hostile work environment claims. A discrete act is a demotion, termination, setting of pay, etc. Regarding a “discrete retaliatory or discriminatory act,” the Morgan Court held that such an act occurs on the day that it happens and consequently a party “must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.”

Yesterday the Court decided LEDBETTER v. GOODYEAR TIRE & RUBBER CO. This case involved a supervisor at a Goodyear Tire plant in Alabama, where a female supervisor brought suit because she was being paid less than her male colleagues despite having more seniority. In order to make her claim timely, Ledbetter argued that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.” SCOTUS disagreed:

Ledbetter’s arguments here—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—cannot be reconciled with Evans, Ricks,Lorance, and Morgan. Ledbetter, as noted, makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions that occurred prior to that period were not communicated to her. Instead, she argues simply that Goodyear’s conduct during the charging period gave present effect to discriminatory conduct outside of that period. Brief for Petitioner 13. But current effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have “no present legal consequences.” 431 U. S.,at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

Linda Greenhouse and other have chided the Court's opinion as unfair. This opinion should come as no shock--its simply extends the reasoning of Morgan to pay setting, which is clearly a discrete act.

South Carolina Governor calls for tougher DUI laws

Legislation might be on the way to Sanford for signature. The proposed law would create a tiered penalty system based on a driver's blood-alcohol content.

SCOTUS holds that Tax Court provides the exclusive forum for challenges to IRS decisions on abatement of interest

The Internal Revenue Code provides that if any amount of assessed federal income tax is not paid “on or before the last date prescribed for payment,” interest “shall be paid for the period from such last date to the date paid.” 26 U. S. C. §6601(a). Section 6404 of the Code authorizes the Secretary of the Treasury to abate any tax or related liability in certain circumstances. In 1996, Congress added what is now §6404(h), which states that the Tax Court has “jurisdiction over any action brought by a taxpayer . . . to determine whether the Secretary’s failure to abate . . . was an abuse of discretion."

In Hinck v. United States, SCOTUS rejected a claim that challenges on the abatement can be brought outside the Tax Court. According to the court, " In a single sentence, [the statute] provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief." The statute is clear that the Tax Court is the only forum where a taxpayer can challenge refusals to abate.

N.C. Judge OKs Witness Oaths Using Quran

Under North Carolina statutory law witnesses may be sworn by laying a hand over "the Holy Scriptures, via a religious oath “with upraised hand,” without the use of any religious text, and with a secular oath. The ACLU lawsuit brought suit, arguing that "Holy Scriptures" encompassed much more than the Bible. Judge Paul Ridgeway held both common law and state Supreme Court precedent allow witnesses and jurors to use the text "most sacred and obligatory upon their conscience."

This is an interesting case. I have my doubts that the drafters of the statute viewed "Holy Scriptures" as any thing but the Bible. While it might be a good policy to allow use of other religious books in the oath giving process, this does not appear to be what the statute requires. We'll see if an appeal follows.

SCOTUS holds that diversity permits continued search of residence

In Los Angeles County v. Rettele, SCOTUS dealt with an unreasonable search and seizure issue. Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race (white) than the suspects (blacks). Rettele and his girlfriend were forced out of bed and to stand naked while the police searched the house. The poilice did not find the suspects and left. Rettele brought suit under §1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. At base, Rettele argued that as soon as the police saw that he and his girlfriend were white, they should have realized they had the wrong house and stopped the search. SCOTUS disagreed:

When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.

Daniel Pieper to be new Court of Appeals judge

Daniel F. Pieper was elected to S.C. Court of Appeals to succeed the Hon. H. Samuel Stilwell. Best wishes to Judge Pieper.

Congrats to Don Beatty

Judge Beatty was elected to the SC Supreme Court yesterday.

SCOTUS puts new teeth in Rule 12(b)(6)

In Twombly v. Bell Atlantic Corp., SCOTUS considered class-action antitrust lawsuit filed against the Baby Bell claiming that these companies created a monopoly that prevented others from entering the industry. The antecedent question presented dealt with whether plaintiffs pleading was sufficient to survive a Rule 12(b)(6) motion. Factual allegations, according to the Court, must be enough to raise aright to relief above the speculative level on the assumption that all of the complaint’s allegations are true. The Court held that plaintiffs’ claim of conspiracy in restraint of trade came up short. The complaint, according to the majority, left no doubt that plaintiffs claim rested on allegations of parallel conduct--not on any independent allegation of actual agreement between the Baby Bells. Hence, the Complaint could not withstand a 12(b)(6) motion:

In applying these general standards to a §1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

We'll see if this decisions gives rise to a greater likelihood that 12(b)(6) motions will be granted.

SCOTUS holds parents have a right to proceed pro se when challenging appropriateness of education under IDEA

In Winkelman v. Parma City School District, parents’ dissatisfied with the school district’s educational plan for the youngest of their five children filed their own lawsuit in Federal District Court in Cleveland under the Individuals with Disabilities Education Act They lost, and while the case was on appeal, the United States Court of Appeals for the Sixth Circuit ruled in another case that parents bringing such suits could not proceed without a lawyer.

SCOTUS concluded that the IDEA grants parents independent, enforceable rights, which are not limited to certain procedural and reimbursement-related matters and thus encompass the entitlement to a free appropriate public education for the parents’ child. Hence, it is not the unauthorized practice of law for the parent's to file suit without a lawyer when they seek a judicial determination that their child’s free appropriate public education is substantively inadequate.

The dissenters, quite forcefully, argued that the right to an appropriate public education belongs to the child and not the parents. Hence, the statute does not give the parents the right to serve as a representative of the child in court.

S.C. Supreme Court issues opinion on place of employment for workers comp. purposes

In Oxendine v. Davis, Oxendine was injured at work. During the four to six years preceding his injury, Oxendine framed houses for Employer during warm months and performed sheetrock work for other employers during cold months. Employer was based at a home/office in Mullins, South Carolina, and nearly all of Oxendine's work for Employer was performed in South Carolina. In the spring of 2004, Employer offered Oxendine a job framing a house in Ocean Isle, North Carolina. Respondent started work the following Monday and was injured six weeks later when he fell and sustained an ankle fracture which required surgery. The North Carolina Industrial Commission denied the claim and Oxendine brought a claim in South Carolina. Both parties agree that Oxendine was hired and injured in North Carolina. They disagreed on the location of the employment: Oxendine argued SC and Employer NC.

The Supreme Court applied the following factors to determine state of employment:
(1) Oxendine regularly worked for Employer in South Carolina during warm months for a number of years; (2) Oxendine went to Employer’s home/office in South Carolina on occasions to be paid, including at least once during the last interval of his work; (3) Oxendine often met co-workers at the place of employment to go to jobs; and (4) Oxendine performed work at Employer’s home immediately before his injury.

Based on these factor, the Court held the place of employment to be SC.

How can big firms attract top graduates??

According to this from Law.com: "Firms can reach out to more top law students by addressing high attrition rates and setting sustainable billable expectations."

Of course, as long as students have debt and big firms have high salaries, the top students will still come.

McGuire Woods argues against itself in class action settlement

Eliot Disner, a McGuireWoods partner has raised objections to his firm's $49 million settlement of a class action against the nation's largest provider of bar review courses, BAR/BRI( a West entity). The gist of the suit is that Kaplan and BAR/BRI signed a joint marketing agreement in 1997 in which Kaplan agreed not to offer a bar review course and BAR/BRI promised not to provide preparatory courses for the Law School Admission Test.

The settlement calls for West Publishing to pay $36 million and Kaplan to pay $13 million. After $12 million in attorney fees, this translates into an average award of $125 each to the roughly 300,000 law students who took West Publishing's BAR/BRI courses between 1997 and 2006.

Wanting some more $$$, Disner drafted a 13-page brief arguing that the settlement lets West Publishing off the hook too lightly. He did not file the brief himself, but let the dissenting plaintiffs do so. If the case against BAR/BRI were to go to trial, Disner argues in the brief, it could result in a judgment of more than $400 million, based on the treble damages available under antitrust law.

Fourth Circuit issues Guidelines Opinion in Tax Protest Case

In UNITED STATES v. BAUCOM, the Fourth Circuit held in a tax protester case that the District Court erred in refusing to include the state tax amounts when calculating the advisory guideline range. The district court misapprehended that state taxes owed could not, on federalism grounds, be used in calculating a federal sentence. Under the plain language of the guidelines, state tax losses caused by defendants were relevant conduct to the extent that they "were part of the same course of conduct or common scheme or plan" as defendants' failure to file federal tax returns.

Judicial Discipline for Criticism of Colleague

Howard Bashman has a good column up on a recent Florida disciplinary proceeding against an appellate judge who criticized a colleague for failing to recuse himself. Judge Michael E. Allen issued a concurring opinion in which he explained that because of press reports an other factors, Judge Kahn should have realized that an appearance of partiality existed. At base, it seems that Judge Kahn was very close with some of the defendants cronies and political allies. The disciplinary charges accuse Judge Allen of acting improperly in relying on newspaper articles, which were outside of the record on appeal and constituted hearsay. The charges further accuse Allen himself of undermining public confidence in the judiciary.

These seem to be pretty weak grounds for judicial discipline. It will be interesting to see how this case plays out.

Jury charges on punitive damages

I've posted a good bit on Philip Morris v. Williams and the Supreme Court's unworkable standard on for punitive damages: a jury may hear evidence of harm to other to judge reprehensibility, but it may not punish a Defendant for the harm to others. Law.com has a good essay up on the decision and mechanisms a court can use to prevent a jury from punishing a defendant for harm to non-parties to the litigation.

Most of us expect that the court will give jury charges aimed at preventing punishment for harm to non-parties. North Dakota has just adopted the following instruction, which many states will likely copy:

In considering an award of exemplary or punitive damages, you may, in determining the reprehensibility of the Defendant's conduct, consider the harm the Defendant's conduct has caused to others. You may not, however, punish the Defendant for harm caused to others whose cases are not before you. You may punish the Defendant only for harm done to the Plaintiff.

We'll see how South Carolina trial courts handle this situation.

Fourth Circuit addresses third-party beneficiary theory with military procurement contracts

In SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD, the UK brought suit against a US contractor under a third-party beneficiary theory for failing to provide goods pursuit to a contract between the US government and the contractor. A panel of the Fourth Circuit held that no third-party beneficiary theory was permissible because statutory law provides methods by which the foreign power can contract directly with the contractor. As pointed out by Judge Traxler in dissent, the majority's reasoning is pretty weak:

The mere fact that a procurement for cash transaction does not involve a direct contractual relationship between the foreign purchaser and the defense contractor does not dictate that UKMOD’s claim is statutorily barred. Indeed, any third-party beneficiary claim assumes the plaintiff does not have a direct contractual relationship with the defendant.

Fair Debt Collection Practices Act applies to statements made in litigation

In SAYYED v. WOLPOFF & ABRAMSON, the Fourth Circuit dealt with the issue whether law firms are immune to claims under the Fair Debt Collection Practices Act because an alleged absolute common law immunity attaches to any statements made during the course of judicial proceedings. The district court accepted this theory of immunity and held that allegedly false statements in a debt collection law firm's interrogatories and summary judgment motion could not constitute FDCPA violations. The Fourth Circuit disagreed, holding that the Act applies to law firms that constitute debt collectors, even where their debt-collecting activity is litigation.

SCRCP Rule 40(b) amended to provide that a case cannot be called to trial until 180 days have passed after joinder of new party

The new rule can be found here.

S.C. Supreme Court amends petition for cert. requirements

The new rule can be found here.

Fraud and Benefit of the Bargain

In Schnellmann v. Roettger, the Supreme Court held that the Court of Appeals erred by applying an incorrect method of calculating damages in a fraud case. The buyers of a home claimed damages for fraud because the actual square footage of the home was much less than the home had been listed for. The Court of Appeals held that damages were the difference between the contract price and the reasonable market value of the property. The Supreme Court reversed, holding that damages for fraud are determined pursuant to the “benefit of the bargain” rule, or the difference between the value the plaintiff would have received if the facts had been as represented and the value he actually received, plus any consequential losses proximately resulting from the fraud.

State Supreme Court agrees with Court of Appeals that no private right of action exists for allegedly failing to warn of child abuse

Under South Carolina statutory law, "A physician … shall report in accordance with this section when in the person’s professional capacity the person has received information which gives the person reason to believe that a child’s physical and mental health or welfare has been or may be adversely affected by abuse or neglect." In Doe v. Marion, Doe, who was a victim of Dr. Marion, argued that argued the statute imposed a duty on Dr. Graf to report Dr. Marion’s predilection for sexual abuse and/or molestation of children to the appropriate authorities and that a private right of action was created in Doe's favor. The Supreme Court disagreed, noting that purpose of the statute is the protection of the public and not with the protection of an individual’s private right. The Court also rejected a common law duty in this case. The Court noted that Dr. Graf was not aware of a distinct, specific, overt threat of harm which Dr. Marion made towards a particular victim.

Fourth Circuit nomination for Chief Judge Wilkins' seat should be soon

I'm hearing from multiple sources that a South Carolina nomination is just around the corner. It is a credit to the state that we had a qualified and deep candidate pool: District Judges Floyd and Wooten; US Attorney Lloyd; and esteemed members of the bar such as Bill Coates.

All indications are that the nominee will likely be either Steve Matthews of Haynsworth Sinkler Boyd, or Judge John Kittredge of the South Carolina Court of Appeals. Both have been long mentioned in this process. However, this could change with the shifting sands of the nomination process.

Matthews is a Yale law graduate and served in the U.S. Department of Justice during President Reagan's second term. He has a reputation of being one of the brightest intellects in the South Carolina bar. He was a trusted advisor for Attorney General Edwin Meese III.

Judge Kittredge has served on the South Carolina family court bench, the circuit court bench, and the last four years on the state Court of Appeals. He has a reputation for fairness, even temperament, and fastidious preparation. In fact, I appeared before a panel including Judge Kittredge just yesterday, and, as usual, it was a pleasure to argue before him.

Either man would make an excellent addition to the Fourth Circuit.

Court of Appeals reminds us of the importance of a proper appellate record

In Williamson v. Middleton, the en banc court of appeals gives counsel a reminder of why proper creation of an appellate record is critical. Williamson argued that Middleton is not entitled to the attorneys’ fees awarded because he did not meet the requirements of section 39-65-30 of the South Carolina Code. Specifically, Williamson argued that the statute only applied to sales representatives who seek to recover commissions on “wholesale” sales, and the sale Middleton sought commissions from was made to the ultimate consumer. The Court of appeals held that this issue was not preserved for review.

Williamson’s arguments to the Judge on this issue were not reflected in the record on appeal. Williamson's counsel indicated that she had briefed this issue before the judge, but the record on appeal did not contain a copy of the memo. However, the court of appeals acknowledged that the judge addressed the argument in his order awarding attorneys’ fees, which suggested that the argument was set forth in Williamson’s memorandum. In the order, the judge found Williamson’s argument that Middleton was not entitled to attorneys’ fees and costs pursuant to section 39-65-30 came too late because during trial, Williamson never objected to the jury instructions referencing section 39-65-30, nor did Williamson challenge the judge’s initial ruling that Middleton was entitled to attorneys’ fees.

To make the error preservation issue even more difficult, Williamson did not seek a reconsideration of these findings by Judge Pyle in its Rule 59(e) motion. Hence, the attorney fee issue was not properly preserved because it was not raised and ruled upon by the trial court.

Light Blogging Today

I'll be in Columbia for oral argument before the State Court of Appeals.

Authority on Appeal

Howard Bashman has good essay up on citing authority on appeal. Here is a taste:

Yet all authority is not created equal. If you are briefing an appeal in a particular federal appellate court, and the appeal's outcome depends on federal law, the best possible authority that one could cite would be the binding precedent of the U.S. Supreme Court. Equally as good, in most instances, would be an earlier precedential ruling from the same federal appellate court in which the current appeal is pending.

Sometimes, however, no binding precedent yet exists from either of those sources. In that circumstance, it would certainly be useful to cite to relevant rulings from other federal appellate courts. If other federal appellate courts have all construed the law's meaning the same way, the court before which the current appeal is pending will likely be reluctant to "split the circuits" by construing the law to mean the opposite of what the other courts have ruled.

Reminder to Self: Omit Name From Death Threat Against Judge

Yep. This is classic.

Another round of associate pay wars??

Law.com reports that the opening shots have been fired.

Interview with Justice Stevens

Thrid Branch has a great interview with Justice John Paul Stevens up.

Fourth Circuit denies teacher's First Amendment claim regarding religious items removed from classroom

In LEE v. YORK COUNTY SCHOOL DIVISION, a school teacher brought suit alleging that his First Amendment rights were violated when the School Board removed materials he had posted on the bulletin boards in his classroom. The items included the following: (1) a 2001 National Day of Prayer poster, featuring George Washington kneeling in prayer; (2) a May 15, 2004, Daily Press news article entitled "The God Gap," outlining religious and philosophical differences between President Bush and his challenger John Kerry; (3) an October 14, 2002, USA Today news article entitled "White House Staffers Gather for Bible Study,"describing how then Attorney General Ashcroft led staffers in voluntary Bible study sessions; (4) a November 1, 2001, Daily Press news article, detailing the missionary activities of a former Virginia high school student. The district court rejected Lee’s claim, concluding that his postings were curricular in nature and thus did not constitute speech on a matter of public concern.

The Fourth Circuit affirmed, holding that

Because the Removed Items constitute school-sponsored speech bearing the imprimatur of the school, and they were designed to impart particular knowledge to the students at Tabb High, the Items are curricular in nature. As such, the dispute over Lee’s postings of the Removed Items is nothing more than an ordinary employment dispute. See Boring, 136 F.3d at 369 (concluding that disagreements over curricular speech constitute ordinary employment disputes). The Items do not constitute speech on a matter of public concern and are not protected by the First Amendment.

Fourth Circuit issues dormant commerce clause opinion

In LIFE PARTNERS, INC. v. MORRISON, the Fourth Circuit was presented with the issue of whether the Virginia Viatical Settlements Act,which regulates viatical settlements with insureds who are residents of Virginia, is saved from the dormant Commerce Clause of the U.S. Constitution by the McCarran-Ferguson Act, as state law that "relates to" the regulation of the business of insurance or as a state law enacted "for the purpose of regulating the business of insurance." At base, a Viatical Settlement is one where a terminally ill person sells a life insurance policy for cash in order to help pay for care during the last weeks of the person's life.

After selling her policy, Jane Doe sought to get more money by invoking the minimum pricing provisions of the Virginia Viatical Settlements Act. Life Partners, contended that the Virginia Act violated the dormant Commerce Clause, sought declaratory relief. The District Court ruled for the State and the Fourth Circuit affirmed, holding that in the McCarran-Ferguson Act, Congress delegated its commerce power to Virginia in sufficiently broad terms to cover viatical settlements.

S.C. Supreme Court adopts "frequency, regularity, and proximity test" for product liability actions

In Henderson v. Allied, the trial court grant summary judgment against Henderson in an asbestos case under the Door Closing Statute because the Plaintiff was residents of NC and could not show regular exposure in South Carolina. In determining whether exposure is actionable, the Supreme Court adopted the “frequency, regularity, and proximity test” set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986): “To support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.”

The Supreme Court agreed with the trial court that “presence in the vicinity of static asbestos is not exposure to asbestos." Summary judgment was affirmed.

S.C.Supreme Court holds that administrative sanaction is not equivalent to prosecution

In Elephant, Inc. v. South Carolina Dept. of Revenue, a bartender at Platinum Plus sold beer to a minor who was working with the Department in a sting operation. Elephant, Inc., the owner of the bar, was issued a $1000.00 fine by the Department of Revenue. On appeal, the fine to $100.00, finding the fine excessive in light of Elephant’s corporate policy attempting to prevent the sale or possession of alcohol by minors. Elephant appealed to the supreme court contending it is not subject to “prosecution” because the minor CI was never prosecuted for under-age possession.

The court recognized that though it is correct that a person may not be prosecuted for the sale of alcohol to a minor under § 61-4-50 unless the minor is also prosecuted, this does not carry over to administrative sanctions for violation of a Department of Revenue Regulation. Administrative sanctions are not equivalent to a criminal prosecution.