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

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 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


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. 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