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.

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."

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.