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.
Possible Fourth Circuit Nominations

According to this op-ed, we might soon see two nominees from Virginia to the Fourth Circuit:

Yet, a glimmer of bipartisan hope has emerged. Virginia’s U.S. senators, Republican John Warner and Democrat Jim Webb, have agreed on a list of five potential nominees to fill two of the 4th Circuit vacancies.

Friday, July 06, 2007

The Kennedy Court

Over at NRO, Jonathan H. Adler argues that we are now in the era of the Kennedy Court:


In many respects, this year saw the emergence of the “Kennedy Court,” with all that implies. As the swing justice, Justice Kennedy was able to dictate the outcome in many cases. He voted with the majority in every one of this term’s 5-4 decisions, even those that were not decided along ideological lines. But even when he did not cast the deciding vote, Justice Kennedy was almost always in the majority. The Court decided 68 cases after oral argument this term, and Justice Kennedy dissented only twice, according to end-of-term statistics compiled by the folks at SCOTUSBlog. Chief Justice Roberts, by comparison, dissented eight times, and Justice Alito ten, whereas Justices Thomas and Souter each had 16 dissents. Justice Stevens was the most frequent dissenter, voting with the minority 26 times.

Memo to Criminal Defense Counsel: Do not provide your clients weapons or assist with escape attempts

From Law.com:

A Douglas County, Ga., grand jury has indicted a Georgia lawyer with at least 28 years of experience on allegations that he gave a weapon to a client awaiting trial in the county jail.

The indictment charges William P. Keenan with furnishing a dangerous weapon to an inmate and conspiracy to commit escape, both felonies. Prosecutors say that on Feb. 22 Keenan gave a client facing armed robbery charges a 14-inch pruning saw blade.

According to the indictment, Keenan first gave his client Dareon Varner a photograph of the saw blade as requested by Varner. A separate indictment of Varner says that Varner obtained a diagram of the area outside the jail so as to map out an escape route -- although the indictments do not say Keenan helped Varner get that.

Thursday, July 05, 2007

Fourth Circuit rejects takings claim in video poker case

HOLLIDAY AMUSEMENT v. SOUTH CAROLINA, an owner of video poker machines argued that South Carolina took his property without just compensation when the state outlawed video poker in 1999. The Fourth Circuit held that the claim was not ripe because the property owner had not not sought just compensation through an available state court procedure.

Ripeness aside, the panel rejected the takings claim: "Government regulation--by definition--involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase."

Tuesday, July 03, 2007

Steve A. Matthews to get Fourth Circuit nomination

Word on the street is that Steve Matthews will get the Fourth Circuit nomination. The State newspaper has this story. As I have reported before, reliable sources indicated that Judge Kittredge of the S.C. Court of Appeals and Matthews were the final two contenders for the position. Both would be excellent additions to the Fourth Circuit.

Once the nomination is final, I will post more. I just hope our two Senators will fight hard for Steve. He is intellectually gifted, a gentleman, and should be confirmed. He is a nominee worth fighting for.

Fourth Circuit holds that business guest had no expectation of privacy in friend's apartment

In UNITED STATES v. GRAY, Askew sought to suppress evidence (drugs and weapons) found in an illegal search of his friend's apartment. In upholding the district court's refusal to suppress evidence, the Fourth Circuit drew a distinction between business and social guests and drew upon "the fact that a social host often shares not only his home but also his privacy with his guest." According to the panel:

Many social guests entrust their hosts with the safety and security of both their persons and their belongings. An overnight guest, for example, seeks shelter in another’s home "precisely because it provides him with privacy, a place where he and his possessions will not be disturbed." Id. The same generally cannot be said of business visitors. Often strangers with little or no connection to a residence, business associates may or may not have reasons for mutual trust. To expand the protections afforded by the Fourth Amendment to cover any such caller, does not map onto "the every day expectations of privacy that we all share."

Judge Michael wrote a dissent in which he challenged the majority for using facts from a presentence report to support its finding made regarding suppression. "Today marks the first time an appellate court has affirmed a pretrial suppression ruling based on facts taken from a presentence report or sentencing findings." Judge Michael also pointed out that for suppression and the finding of a business relationship which denied Askew a right of privacy, the majority used presentence report material.

Because no court of appeals had ever considered sentencing evidence in its review of a suppression motion before today, neither the district court nor Askew had any reason to expect that Askew’s complete cooperation during the sentencing process (which was required of him under the terms of his plea agreement) might work to his detriment in this appeal.


Sounds like this one should be considered en banc to me.

S.C. Supreme Court upholds sanactions for failing to comply with discovery

In Enriquez v. SCDOC, a prisoner brought against SCDOC for allegedly failing to prevent a beating inflicted by other prisoners while he was incarcerated. On the second day of trial, during questioning by Enriquez’s counsel, a corrections officer revealed that he had filed an incident report following the altercation. The incident report had not been produced in discovery. Counsel requested a copy of the report which SCDOC then produced during a break in testimony along with other documents that had not been previously disclosed. After examining the documents, counsel moved for sanctions claiming that the new documents identified other witnesses and would have affected his evaluation of Enriquez’s case.
The trial judge found sanctions were appropriate and ordered SCDOC to pay $3,000 in attorney’s fees based on counsel’s representation of his hourly fee for two days of trial and long distance travel.

The Supreme Court affirmed. Pursuant to an earlier motion to compel, there was a standing order that SCDOC “promptly comply with discovery or [be] subject to sanctions.” The Court held that Rule 37(b) expressly provides for an award of sanctions for a party’s failure to obey a discovery order. Hence, the sanctions were affirmed.

Monday, July 02, 2007

Thoughts on the School Cases

Last week, SCOTUS struck down pupil assignment plans that focused on students' race. The goal of the plans was to achieve racial balance in the public schools. The opinion was really 4 - 1 - 4, and arguably Justice Kennedy's concurring opinion is controlling on lower federal courts. What we have with the plurality plus Kennedy is that Diversity is as compelling state interest for K-12--just like in Grutter. However, race may not be the sole factor in student assignment--it may be one of many factors when achieving diversity, which is not simply various colors of students in a classroom. Before school districts resort to looking at a student's race to accomplish the ends of diversity, they must first have tried race-neutral policies. For example, a school should not resort to race if it has not tried to balance class rooms by using socioeconomic factors (e.g., balancing classrooms based on the number of student receiving free lunch, etc.).

What we really see in this opinion is a split on the meaning of Brown. The conservatives interpret Brown as the death knell of state-imposed racial segregation, whereas the liberals read Brown as giving state actors license to racially balance classrooms even if there has been not state action causing the separation. Justice Kennedy seems to lean towards the liberals on this one. The next appointment to the Supreme Court, however, could change this balance.