Closing Out

Well, I have left private practice and have taken a job with the US Attorney's Office. In light of my career change, this blog is shutting down. Thanks to everyone who dropped by for the latest SC legal news.

Merry Christmas.

Constitutional issues with Clinton appointment???

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

Clinton was in the Senate when a pay increase passed for Secretary of State. Thus, under this clause, she is not eligible for the office. This situation has come up in the past and Congress has simply passed a law reducing the salary to what it was before.

The LA Times has more on this issue here.

Who will Obama appoint to SCOTUS?

The LA Times has this article.

The top three are:

Judges Diane Wood, 58, of the U.S. appeals court in Chicago;

Judge Sonia Sotomayor, 54, of the U.S. appeals court in New York;

and Elena Kagan, 48, dean of Harvard Law School.

Billy Wilkins' return to the courtroom as a lawyer meets with success

From the Greenville News:

William W. “Billy” Wilkins successfully argued against a motion in a shareholder suit against South Financial that asked for a temporary restraining order barring retirement payments to retired CEO Mack Whittle as part of a an agreement that the suit alleges is “unconscionable” and could threaten the company’s solvency if carried out.

The agreement would pay Whittle $10 million following his retirement in October, attorneys said in court Tuesday during a hearing before Circuit Judge John Few, who denied shareholder Vernon Mercier’s request for the restraining order.

Not surprisingly, Wilkins's stock as an advocate is rising.

SCOTUS vacates injunction against Naval use of sonar

Last week, the United States Supreme Court issued its first opinion of the new term: Winter v. Natural Resources Defense Council. This case concerned the Navy’s use of mid frequency active sonar, which transmits sound waves at various frequencies. This type of sonar is used in Naval exercises, including training and tracking of submarines. The Ninth Circuit Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though the record contained no evidence that marine mammals have been harmed by the activity. In arguing against the injunction, the Navy emphasized that it had used sonar during training exercises off the coast of California for forty (40) years, without a single documented injury to a marine mammal.

The injunction issued based on the Navy’s alleged violation of the National Environmental Policy Act of 1969, which requires federal agencies to the fullest extent possible to draft an environmental impact statement for every major federal action affecting the quality of the human environment. The areas of the injunction that were in contention required the sonar to be shut down when a marine mammal was spotted within 2,200 yards of a vessel, and the requirement that the sonar be powered down during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water.

In reversing and vacating the injunction, the Supreme Court noted that the District Court and Court of Appeals held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. The Supreme Court held that the preliminary injunction standard requires plaintiff seeking relief to demonstrate that irreparable injury is likely in the absence of an injunction. The issuing of a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the court’s characterization of injunctive relief as an extraordinary remedy that may be awarded upon a clear showing that plaintiff is entitled to such relief.

The Supreme Court went on to note that even if the plaintiffs had shown irreparable injury from the training exercises, such an injury was outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. The court cited testimony from several Naval officers who emphasized that realistic training cannot be accomplished under the two challenged for civic restrictions imposed by the District Court.

Obama could transform the Fourth Circuit

A snippet from the Richmond Times:

As president, Barack Obama and a new U.S. Senate could transform the Richmond-based 4th U.S. Circuit Court of Appeals, long one of the most conservative in the country.

President Bush failed to fill four vacancies on the 15-judge court, which decides cases on issues such as abortion, the death penalty and terrorism.

The Bush administration steered terrorism cases to the court, where it largely has been successful in protecting the president's national-security powers, though not always.

Six of the court's current judges were appointed by Republican presidents and five by Democrats.

Judgment not necessary to pierce corporate veil

In Drury Development v. Foundation Insurance, the South Carolina Supreme Court answered the following certified question: whether a judgment against a corporation is a prerequisite to an alter ego claim. This question has come up often in South Carolina. Frequently, plaintiffs attempt to demand many financial documents of a corporation early in discovery on the basis of an alter ego claim. Defendants often counter that this discovery is premature and improper because no judgment has been entered against the corporation and therefore the issue of veil piercing cannot come up.

Noting that veil-piercing is a form of equitable relief, the South Carolina Supreme Court refused to impose "rigid rules of law to seek substantial justice." The court ultimately held that "so long as the plaintiff has pled facts sufficient to survive a motion to dismiss as to the corporate liability claims and the alter ego claim, the trial court should move forward to determination of both matters."

Voter registration drives

Here is an interesting take on the voter registration movement and the duties of citizenship.

SC Supreme Court says that dreadlocks is insufficient reason to strike juror

In McCrea v. Gheraibeh, the South Carolina Supreme Court reversed the denial of a Batson Motion and remanded the case for a new trial. This case arose out of an automobile accident. When three of six potential black jurors were struck, a Batson Motion was made. During the hearing, the lawyer striking the jurors stated that he struck one man with dreadlocks because he was uneasy about him. In accepting counsel’s explanation, the trial court stated that he knew both of the attorneys, was aware of their reputations in the community, and that he did not believe that the attorney would engage in racially high motivated conducted. Therefore, the trial judge accepted the “uneasiness” argument regarding the dreadlocks.

In reversing on grounds of Batson, the Supreme Court held that uneasiness over dreadlocks was not a race-neutral reason for striking someone. Regardless of their gradual infiltration into mainstream American society, the court stated that dreadlocks retained their roots as a religious and social symbol of black culture. Hence, no race-neutral reason for striking the juror was offered.

Court of Appeals issues opinion on 43k settlements

The following settlement was put on record just before trial:

Your Honor, the settlement that’s been reached is that this case will be dismissed with prejudice by an order of dismissal with prejudice to be consented to by the parties and signed by your honor.

Furthermore, the defendants, each and every one of them, will consent to and sign and deliver to me a confession of judgment which will provide for the payment of $165,000 within 18 months. And there will be additional payment terms in there, $25,000 of the 165 within 30 days.

Further, in kind consideration, in addition to the 165,000 the return of 15 rugs, three of which shall be room size Herizes, the confession of judgment will have an attorney’s fee provision that in the event of default, that the cost of enforcing the judgment or collecting the judgment will be recoverable.

And, finally, the confession of judgment will have a no contest stipulation. If it’s required to be domesticated in some state other than South Carolina, the defendants agree not to contest the domestication.

Some weeks after this was put on the record, the parties disputed whether interest was applicable. The court of appeals held that even though interest was not mentioned, it was applicable. The court of appeals held that interest was applicable: "However, interest is provided for by statute. Section 34-31-20(A) provides '[i]n all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum.'"

The case is Vista Antiques v. Noaha.

Can McCain or Obama Turn the Supreme Court?

Law.com offers this analysis.

SC Supreme Court affirms conviction of criminal solicitation of a minor

In State v. Gaines, the South Carolina Supreme Court upheld a conviction under our recently enacted Criminal Solicitation of a Minor statute. Gaines was an Internet predator who used AOL chat rooms to engage in conversations with young girls. Unknown to Gaines, two of the friends he met on line were police officers. A police officer in Pennsylvania reported his conduct to authorities in South Carolina, and an officer in South Carolina contacted Gaines via AOL. The officer pretended to be a 13 year old girl and Gaines suggested they meet for sex.
After conviction, Gaines appealed and argued that the evidence regarding the chats with the officer in Pennsylvania should have been inadmissible. This contention was rejected because under Rule 404(b) crimes or evidence crimes, wrongs, or acts similar to those that the defendant is on trial for, can be admitted to show motive, identity, or the existence of a common plan or scheme.

Gaines also argued he was entitled to an entrapment instruction. The entrapment defense consists of two elements: (1) government inducement, and (2) lack of pre-disposition. Gaines argued that because the South Carolina police officer first contacted him with the message "Hey" constituted entrapment. The Supreme Court disagreed and said that the initial contact merely afforded Gaines the opportunity to solicit sex. He was in no way induced to commit the crime of criminal solicitation with a minor.

Supreme Court hears case about Navy sonar and whales

From the LA Times:

The Supreme Court justices appeared closely split Wednesday on whether environmental laws can be used to protect whales and other marine mammals from the Navy's use of sonar off the coast of Southern California. A Bush administration lawyer argued that when national security is at stake, the president and his top military commanders are entrusted with setting the rules.

The government is urging the high court to throw out a Los Angeles judge's order that put limits on the Navy's operations. Acting on a suit brought by the Natural Resources Defense Council in Santa Monica, U.S. District Judge Florence-Marie Cooper ordered the Navy to shut down its high-intensity sonar whenever a whale or marine mammal is spotted within 1.25 miles of the ship.

Big Changes at SCOTUS

Law.com has a nice article on the upcoming term and possible changes.

SCOTUS declines to rehear Ban on Execution for Child Rape

The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the justices had not been presented with what the state and federal government considered an important fact: that Congress in 2006 made child rape a capital offense under military law. This would have perhaps undermined the "national consensus" argument in the majority opinion.

The Court, however, declined to reconsider the issue.

The Washington Post has this article.

Chief Justice Roberts stays execution of Freddie Owens

Freddie Owens has gotten extra time to prepare a petition for cert to the Supreme Court. Owens was sentenced to death stemming from a 1997 robbery-murder on Laurens Road in Greenville County.

In his order, Roberts wrote that should Owens' petition for a writ of certiorari be denied by the justices, the stay would automatically terminate. That would clear the way for the state Supreme Court to set another execution date.

Greenville Councilman Trout arrested by FBI

WSPA has the scoop here.

United States Attorney W. Walter Wilkins announced Harold Anthony “Tony” Trout was arrested Wednesday morning by FBI agents on federal charges of unauthorized computer access.

The federal complaint and supporting affidavit, filed Wednesday, allege violations concerning the unauthorized access of computers.

Trout made an initial appearance in federal court before the U.S. Magistrate Judge William M. Catoe at the United States Federal Courthouse in Greenville.

I'm on Vacation

Check back October 1 for more posts!!

Social worker refuses to testify in Inman case

There has been an interesting twist in the Inman trial going on in Greenville. Marti Loring, a social worker licensed in another state, did a social history on Inman, but refused to take the stand after the prosecutor alleged she was violating state law by practicing social work in SC.

"I feel threatened as a witness in this case and in other cases in which I've testified in South Carolina," Marti Loring told the judge after a recess to allow her to consult with an attorney.

The social worker is refusing to testify now, though the judge told her she does not have a legal ground to refuse. Thirteenth Circuit Solicitor Bob Ariail had previously objected to the introduction of Loring's testimony to her evaluation of Inman's behavioral profile, saying she freqently offers opinions that aren't factually based. The judge asked Loring if she felt uncomfortable and she said she was concerned that Ariail might charge her with a crime. She said she feared her reputation as an expert might be damaged. Ariail said he would grant her immunity, as did the judge.

Sounds like to me the defense team is working to come up with an appellate issue or something to raise on PCR.

S.C. Supreme Court issues opinion of duty of counsel to present mitigation evidence

In Council v. State, the South Carolina Supreme Court affirmed relief in a death penalty PCR case. Council was convicted of sexually assaulting a woman and forcing her to ingest cleaning fluids. At trial, Council’s lawyer argued that he was not the murderer, but rather an accomplice at the scene actually did the killing. In the penalty phase, trial counsel only called the defendant’s mother as a mitigation witness. She testified about Council's mental health between the ages of 7 and 14 and that he had been teased while a child at school. Not surprisingly, a jury returned a verdict of guilt and recommended a sentence of death.

The death sentence was overturned because trial counsel fails to present voluminous mitigation evidence. For example, no social history was compiled. Had a social history been compiled evidence could have been presented to the jury that several of Council’s family members suffered from mental illness, that his father was an alcoholic and extremely violate, that Council lived in several homes which did not have running water and indoor plumbing, that he did very poorly in school, and that he had attempted suicide at a young age. Had trial counsel obtained a forensic psychiatrist, testimony could have been presented that respondent was an undifferentiated schizophrenic, which began in early adolescents for childhood.

In summary, the Supreme Court agreed with the PCR court that the mitigation evidence would have been powerful and that that trial counsel was ineffective for failing to present such evidence. Accordingly, the sentence of death was reversed.

Inman mitigation evidence presented in Greenville trial

Here is the story from the g-news.

Today's proceedings are expected to focus on the defense testimony of mental and prison experts, carrying over Price’s testimony on Tuesday -- based on 3,000 pages of medical and prison records -- to how Inman’s childhood and genetic predisposition to mental disorders paved his violent path.When Inman was a toddler, his biological father would tie Inman and his older sister to their bunk bed and molest them, a pattern of abuse that later manifested as Inman likewise bound his victims’ hands after in most cases waking them in their beds, Price testified.

The sexual assaults, along with later sexual acts by another family member, left Inman permanently damaged mentally, Price testified. Inman’s only steady parental figure -- his grandfather, who would often try to intervene when Inman’s parents abused him -- died when Inman was a child, Price testified.At age 10, Inman was using drugs. At age 15, after dropping out of ninth grade, Inman was living on the streets, Price testified.

Forgotten, man sits in jail for two years

From the St. Louis Post:

Joseph A. Shepard Sr. sat in local jails for almost two years, assuming that his lawyer was making progress on his case and that drug-related charges against him would soon be resolved in federal court.

His family says lawyer Michael P. Kelly told them Shepard had pleaded guilty and would return home soon with credit for time already served behind bars. Shepard never came home. Shepard, 53, is a man the system forgot, apparently ignored by his own attorney--and the prosecutor and judge--as days ticked by in a municipal lockup where he was confined to a cell 23 hours a day.

Shepard was surprised when a reporter broke the news at the Jennings jail Wednesday night that his case had been forgotten. It was more than a month after prosecutors took steps to move the case forward, though he still had not been told about it by his lawyer.

Mississippi Supreme Court tries to suppress a dissenting opinion

Take a look at this article.

Power corrupts--especially on the Mississippi Supreme Court.

ABA supports legal outsourcing

Always one to battle for Mom and Apple Pie, the ABA have given its approval to shipping American legal jobs to India.

According to the opinion, Fat Cat Firms may send legal work overseas as long as the lawyer doing the outsourcing takes steps to ensure the protection of client confidences and preservation of attorney-client privilege. The advisory also states that attorneys should check to make sure that foreign lawyers are suitably trained and competent and that bills for outsourced work be reasonable.

SC Supremes issue opinion in Sloan emergency procurement case

From the Greenville News:

The South Carolina Supreme Court on Monday sided with Greenville businessman Ed "Ned" Sloan in ruling that state transportation officials were wrong to negotiate with a contractor on a project rather than put the job out to bid.

The 4-1 decision handed Sloan another legal victory in his lawsuits against the state Department of Transportation and other government agencies and made clear what is and is not an "emergency" for state agencies procuring services.

Sloan filed his suit in 2005 over a 2004 Charleston-area road-widening project that had fallen behind, according to the justices.

Faced with the dilemma of firing the contractor and putting the remainder of the project out to bid, DOT officials thought they could save time by negotiating a new contract with a subcontractor on the project under the state's emergency procurement procedures. The new contract cost just under $8 million, according to the justices.

Sloan argued in his suit that the circumstances did not allow an emergency procurement.

Chief Justice Toal address SC judiciary

Among other points made, the Chief noted that South Carolina has fewer judges with a heavier caseload than any other court system in the nation.

Here is a copy of her powerpoint.

Married to the Big-Firm Machine

Once again, the Snark has a hilarious take on law firm courtships. Considering our summers just left, I found this pretty funny.

SC Supreme Court holds that a defendant may waive, in a plea agreement, right to PCR

In Spoone v. State, the South Carolina Supreme Court dealt with the issue of whether a defendant who pleads guilty may also waive his rights to collateral review. The Court decided to follow federal law and held that a waiver of the right to collateral review is permitted where the circumstances surrounding the waiver show it is knowing and intelligent.

ACLU sues SC on ballot access

From Foxcarolina:

A civil rights organization said it has filed a federal lawsuit against South Carolina, contending the state unfairly limits how candidates are chosen to be on voter ballots.

The American Civil Liberties Union said it filed the lawsuit Thursday in U.S. District Court in Columbia.

The organization said the state's so-called sore loser law is unconstitutional. The law prevents a candidate who loses a primary election from appearing on a ballot as the candidate of a different political party.

The ACLU filed its lawsuit on behalf of a voter, the Green Party and a one-time state House candidate.

Election Commission spokesman Chris Whitmire said the law protects a party's selection process.

Trojans take the 'SC' mark from the Gamecocks

I'm a Clemson fan, but I do believe that the University of South Carolina was done wrong by U.S. Patent and Trademark Office. The Office ruled that the Gamecocks may no longer use the "SC" logo on their baseball caps. The Digital has this story.

This is bogus. The University of South Carolina was founded as South Carolina College in 1801-- 80 years before Southern Cal. "SC" is the official state abbreviation assigned by the United States Postal Service to the state of South Carolina; the state of South Carolina is referred to on maps by the abbreviation "SC"; that various South Carolina state agencies use "SC" as part of their agency acronyms; that the state's official website uses the letters "SC" as part of its Internet address.

The gist of the ruling is that Carolina quit using the interlocking "SC" logo on sports hats in 1981 and did not start again until 1997. During that time Cal continued use of the logo. Cal was smart enough to apply for the mark and Carolina thus lost an uphill battle to use a logo that rightfully belongs to it.

I hope there will be an appeal.

Fourth Circuit affirms grant of summary judgment in Abu Ghraib defamation case

In CACI PREMIER TECHNOLOGY v. RHODES, a military contractor sued a radio talk show host for allegedly defamatory statements. CACI interrogated Iraqi detainees at the notorious U.S.-run Abu Ghraib prison in Iraq. In her radio program, Rhodes made a number of criticisms about CACI role in the torture and abuse of Iraqis. CACI sued for defamation, but the district court granted summary judgment for Rhodes. The district court concluded that Rhodes's statements were protected by the First Amendment, either because they were not made with actual malice or because they did not state actual facts about CACI. The Fourth Circuit affirmed:

We have made a thorough and independent examination of the whole record, and we are satisfied that each of Rhodes’s statements that CACI challenges as defamatory is protected by the First Amendment:either it was not made with reckless disregard for the truth or it did not state actual facts about CACI (it was rhetorical hyperbole,for example). This case reminds us that "[i]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public [issues], and this opportunity is to be afforded for vigorous advocacy" that may be caustic and even exaggerated. New York Times, 376 U.S. at 269 (citations and internal quotation marks omitted). This essential privilege minimizes the danger of selfcensorshipon the part of those who would criticize, thus allowing robust debate about the actions of public officials and public figures (including military contractors such as CACI) who are conducting the country's business.

Fourth Circuit issues SOX opinion declining to reinstate whistleblower

In WELCH v. CHAO, the Fourth Circuit upheld a district court decision declining to reinstate Welch. Welch is a fired bank executive who became the first person to win protection under the whistleblower protection provision of the Sarbanes-Oxley Act. The panel held that Welch failed to explain how his employer's poor accounting practices could be considered a violation of federal law.

S.C. Supreme Court offers guidance on excited utterances

Under South Carolina law, three elements must be met in order for a statement to be an excited utterance: (1) the statement must relate to a startling event or condition; (2) the statement must have been made while the declarant was under the stress of excitement; and (3) the stress of excitement must be caused by the startling event or condition.

In State v. Washington, almost two hours following a homicide, Cropper gave a statement to police. At trial, the State sought to introduce this statement through the interviewing officer as an excited utterance. The Officer testified in camera that at approximately 9:30 p.m., he transported Cropper from the crime scene to the police station and began taking her statement at approximately 11:00 p.m. He described Cropper as being extremely upset and distraught over the incident. The Officer further explained that the statement consisted of a written narrative of the incident, which Cropper wrote, and three pages of questions and answers, which the Officer transcribed. Additionally, the Officer testified that after another officer informed Cropper during the interview that Victim had died, she became hysterical. The Supreme Court held that Cropper’s statement to police does not qualify as excited utterance.

Cropper made her statements in a formal interview with law enforcement at police headquarters almost ninety minutes after the events. These statements were made in response to the Officer’s questions. None of the statements were independent assertions or exclamations regarding the events. Indeed, it is apparent that the Officer was seeking detailed answers regarding the specific facts of the incident as opposed to emotional, unprompted, or inherent responses. While we have no doubt that Cropper was certainly upset as a result of the stabbing, the trial court’s finding that statements made in a formal interview or interrogation to be excited utterances greatly expands the scope of the exception.

Monday Humor

Associates love their big firm jobs--check out the latest from the Snark.

Fourth Circuit allows do-over in products case

In South Carolina Department of Disabilities and Special Needs v. Hoover Universal, an action was commenced alleging damages resulting from Hoover’s sale to the state of defective trusts and sheathing that were incorporated into public buildings in the 1970s. The District Court entered summary judgment in favor of Hoover based on South Carolina Statute of Repose and Statutes of Limitations. The Plaintiff’s, who chose to file in Federal District Court, then brought a motion under Rule 60 asserting they were not citizens for diversity purposes and therefore the District Court never had subject matter jurisdiction. The District Court granted the Motion to Vacate finding that the Plaintiffs were alter-egos of the State of South Carolina and therefore not citizens for diversity purposes.

The Fourth Circuit recognized that it would be inequitable to allow the Plaintiffs to prosecute an action in Federal Court and then get a “do over” in State Court. But, because the subject matter jurisdiction goes to the very power of the court to act the Fourth Circuit had no choice but to affirm the District Court. The Court noted that it is well established that the purposes of diversity jurisdiction of state is not a citizen. A public entity created under state law, which is an arm or alter-ego of the state, is likewise not a citizen for purposes of diversity jurisdiction.

SC Supreme Court grants relief in conflict of interest case

In Lomax v. State, the Supreme Court granted PCR relief in a conflict of interest case. Lomax and her husband, Noah, pled guilty to a variety of drug offenses. Noah was sentenced to 3 years and Lomax received 25 years. Lomax argued that her defense lawyer, who also represented her husband, was ineffectual because of a conflict of interest. She said the lawyer spent more time preparing Noah's case and argued more for a lenient sentence for him.

The trial lawyer testified that she did not favor one client over the other but did spend more time working on the husband's case because she hoped to keep him from jail because he faced far fewer charges.

The Court held that "A review of the plea proceeding also reveals that plea counsel argued for leniency on behalf of husband by comparing his more limited involvement in the crimes to that of petitioner." "We believe plea counsel’s approach essentially pitted husband against Petitioner, which was clearly detrimental to petitioner’s interests."

ABA Report is said to be highly critical of SC lawyer disciplinary system and Chief Justice Toal

FTS news has this blog post. Here is a taste:

"A draft report from the American Bar Association harshly criticizing South Carolina’s controversial attorney discipline system has been confidentially provided to S.C. Chief Justice Jean Toal, a source close to the S.C. Supreme Court tells FITSNews.
Toal and her clerk, Dan Shearouse, received the draft earlier this month, yet as we reported back in March they will not be releasing its findings to the public. Toal and her chief disciplinary counsel, Lesley Coggiola, have also been criticized for controlling which attorneys got to appear before the ABA review team."

SC Court of Appeals issues opinion on duty to report abuse of vulnerable adult

In Williams v. Watkins, the court of appeals considered an order granting summary judgment in favor of Babcock Center and its employee, Nancy Watkins, on Carrie and Robert Williamses' claims for defamation and the intentional infliction of emotional distress. The issue in the case was whether the South Carolina’s Omnibus Adult Protection Act shields Babcock Center and Watkins from civil liability for claims stemming from their reporting the suspected abuse of a vulnerable adult.

The court of appeals affirmed the grant of summary judgment. Watkins and the Center learned of allegations of sexual abuse made by a disabled child. Believing these allegations to be credible, they reported the allegations to authorities under the Omnibus Adult Protection Act. Because in their positions as social workers the defendants were required to report, they were shielded from civil liability under the Act.

Conrad nomination to Fourth Circuit held up in partisan fight

Lisa Zagaroli has this article that begins:

U.S. District Judge Robert Conrad of Charlotte is either an arbitrator so honest that he would rule against his own brother or a conservative extremist who would “turn the clock back” on people's rights.

Whether his friends or foes are correct – or the truth is somewhere in between one thing seems certain: He is no closer to sitting on the 4th Circuit Court of Appeals, or even getting a confirmation hearing, than he was on the day President Bush nominated him a year ago.
The vacancy – the longest in the nation at 14 years – remains mired in a partisan battle among senators and the White House over who should become federal judges.

Fourth Circuit still the fastest in the nation

From the Charlotte Observer:

The Richmond-based 4th Circuit Court of Appeals, which serves the Carolinas and three other states, disposes of cases more quickly than any other circuit in the nation despite its four vacancies. During the 2007-08 court year, it did so by relying on visiting circuit and district judges on 76 percent of the panels that heard oral arguments.
But the vacancies come at another cost – the 4th Circuit also is the least likely court to hear an appeal in person and to issue a detailed opinion, said Carl Tobias, a law professor at the University of Richmond.

More on al-Marri ruling

The NYT has a good op-ed up on the Fourth Circuit's Ali al-Marri ruling. Here is a taste:

The Bush administration has been a waging a fierce battle for the power to lock people up indefinitely simply on the president’s say-so. It scored a disturbing victory last week when a federal appeals court ruled that it could continue to detain Ali al-Marri, who has been held for more than five years as an enemy combatant. The decision gives the president sweeping power to deprive anyone — citizens as well as noncitizens — of their freedom. The Supreme Court should reverse this terrible ruling.

4th Circuit dangerously expands alleged "wartime power"

The Fourth Circuit Court of appeals, in a fractured en banc decisions, held that the President has the legal power to order the indefinite military detentions of civilians captured in the United States. However, the Court also ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. The case is likely to reach the Supreme Court.

The Washington Post has this article on the decision.

Fourth Circuit decides defamation suit againt NYT

In Hatfill v. The New York Times, the Fourth Circuit upheld the district court's grant of summary judgment in favor of the Times. Hatfill alleged that a series of columns published in the newspaper implicated him in the 2001 anthrax mailings that killed five people and sickened 17 others. Key to the holding was that Hatfill is a limited purpose public figure. The court held that Hatfill was accorded this status because he publicly discussed the threat of bioterrorism and the nation’s lack of preparedness for such an attack both before and after the attacks.

As a public figure, Hatfill would have to prove actual malice to succeed in a libel suit against the Times. The Fourth Circuit held that no reasonable jury could have found actual malice.

Indeed, the record contains substantial evidence to support TheNew York Times' contention that Kristof actually believed that Dr.Hatfill was the prime suspect. At the time that Kristof wrote his columns,he knew from several sources that Dr. Hatfill fit the profile that the FBI had developed and that he had been identified specifically by the FBI as a suspect who should be investigated carefully. In conducting research for his columns, Kristof had reviewed many previously published articles about Dr. Hatfill, which recounted that he had been questioned by the FBI more than once; that he had voluntarily vaccinated himself against anthrax shortly before the mailings; that he had access to labs where anthrax was stored; that he had knowledge about anthrax’s use as a weapon; that he had strong views about the bioterrorism threat; that he had agreed that his "background naturally drew the FBI’s attention"; that he had spoken frequently about possible bioterrorism; and that he lost his security clearance after he failed a polygraph test shortly before the mailings. In addition, Kristof reviewed numerous documents, including Dr. Hatfill’s resume and various reports, papers, and letters written by him describing his knowledge of bioterrorism and biological weapons.

S.C. Supreme Court upholds death for Freddie Owens

The Greenville News has this story.

S.C. Court of Appeals upholds discovery sanction of striking answer for failure to produce documents

In McNair v. Fairfield County, the Court of Appeals upheld the sanction of striking the County's answer in a condemnation case. The County had not produced documents 7 ½ months after the trial court granted plaintiff's motion to compel. At the 11th hour the county promised to have all discovery matters cleared up within one month, but failed to do so. The Court of Appeals held that this course of conduct warranted the trial court's striking of the answer.

S.C. Court of Appeals holds that professional negligence claims are assignable

In Fowler v. Hunter, the court of appeals considered the assignability of professional negligence claims. The Fowlers were seriously injured when the motorcycle they were riding was struck by a car driven by Sallie Hunter. The car was owned by Gynecologic Oncology Associates (“GOA”) for use by Mrs. Hunter’s husband, Dr. James Hunter. Auto-Owners Insurance Company insured the car under a business automobile policy with limits of one million dollars. At least two other policies potentially provided coverage. One was a commercial umbrella policy for four million dollars procured by GOA through Insurance Associates and issued by Selective. The other policy at issue was a personal catastrophic liability policy for two million dollars carried by the Hunters and also issued by Selective.

After settling certain claims, the Hunters and GOA assigned their professional negligence claim against Insurance Associates to the Fowlers, and the Fowlers signed a covenant not to execute against the Hunters and GOA. The Hunters and GOA agreed to cooperate with the Fowlers in the prosecution of the professional negligence claim, and the Fowlers and Selective agreed to split equally any recovery from either the professional negligence or indemnification claim. The trial court held that such an assignment was impermissible and granted summary judgment. The court of appeals reversed.

The Court of Appeals held that this assignment was permissible and stressed that there was little evidence of collusion between the settling parties. "In light of our State’s willingness to place the interests of the injured party above such a technical application of the law, we believe it was inappropriate for the claim to be dismissed at the summary judgment stage."

Fourth Circuit upholds suprevised release requirement of intramuscular injections of antipsychotic drugs

In United States v. Holman, the Fourth Circuit Court of Appeals considered the propriety of a condition of supervised release requiring that Holman participate in mental health treatment and take all prescribed medication, including intramuscular injections of an antipsychotic drug. Holman challenged the condition of supervised release as violating protected liberty interest. The Fourth Circuit Court of Appeals affirmed the district court’s decision. The court found that there was ample evidence that when Holman is off his medication he poses a danger to himself and others. The court also noted that the district court’s order was narrowly tailored to the circumstances of the case because Holman only became a danger when he was off his medication and long-lasting antipsychotic drugs provide the only means of insuring that Holman take his medication. Holman had a long history of non-compliance with medication while in prison. Finally, the record established that the involuntary-medication requirement was medically appropriate. Prison officials were generally required to use injections to stabilize Holman’s condition once he quit taking his oral medications, and Holman’s prison psychiatrist believed that the injections were his best treatment option because they prevented Holman from succumbing to the temptation to stop taking his medicine.

Change in US News law school rankings could hurt schools with part-time programs

One important category on the US News list is the undergraduate grade-point average and LSAT scores of the incoming class. U.S. News currently uses only the grades and test scores of full-time students. The magazine is considering pooling the scores of part-time students after hearing allegations that some schools move students with lower grades and test scores into part-time programs so they can report better data.

The full story is found here.

Great story on the young lawyer who argued Heller

Heller was only his second appellate argument ever. This is a good read.

Next President could immediately appoint 100 judges

The Senate is proposing to expand the federal judiciary by 50 permanent judgeships -- including a dozen on federal appellate courts nationwide.

Because the Senate is unlikely to confirm the existing 45 unfilled judicial vacancies by the end of the Bush II term, the incoming president would have an immediate opportunity to appoint nearly 100 judges, when the unfilled vacancies are combined with potential new judgeships.

Law.com his this report.

Thoughts on Heller

The Second Amendment provides that "[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." In District of Columbia v. Heller, the Supreme Court held that the plain language of the Amendment recognizes a personal right, belonging to "the people," to possess firearms. The Court rejected arguments that the Second Amendment simply permits the states to form, arm, and maintain their own militias or the modern National Guard.

Heller arose out of the District's complete ban on possession of usable handguns in the home. In the District, it is a crime to carry an unregistered firearm and the registration of handguns is prohibited. Registered long guns, such as shotguns, are allowed in the home, but they must be unloaded and disassembled or bound by a trigger lock. The result is that citizens of the District have no legal means of defending themselves should an intruder enter their residences. They call 911 and hope a police cruiser is nearby.

Writing the majority opinion, Justice Antonin Scalia traced the origin of the right to bear arms to Great Britain where the eminent jurist William Blackstone described it as "the natural one of resistance and self-preservation." Commentators in the years after ratification of the Second Amendment took a Blackstonian view of this right. St. George Tucker, one of the early Republic’s most renowned constitutional scholars, described the Amendment as "the true palladium of liberty” and acknowledged that “the right of self-defense is the first law of nature."

Going forward in history, Justice Scalia examined post-Civil War state laws that prohibited blacks from owning firearms. Members of Congress and Freedmen’s Bureau officials protested that these laws infringed the federal constitutional "right of the people to keep and bear arms." No one ventured to argue that the state laws were permissible because the Second Amendment did not apply to individuals. The language in 1866 was just as clear as it was in 1791.

Hence, the Heller Court affirmed that the Second Amendment protects individual rights and struck down the District’s total ban on weapons for home defense. The Court also made clear that this right is not unlimited and that its holding should not cast doubt on reasonable restrictions prohibiting felons or the mentally ill from possessing firearms. Regulations prohibiting weapons in government buildings and other sensitive places also remain untouched.

The Supreme Court rightly deserves applause for its fidelity to the Constitution in deciding Heller. The case is perhaps the most significant decision of this century. However, Americans should not forget that this was a 5-4 decision. Four justices of the Supreme Court would have ignored the plain language and historical context of the Amendment. Believing themselves at liberty to rewrite fundamental law, these justices would leave Americans at the mercy of criminals and a future government tyranny.

The Second Amendment is part of the same Bill of Rights that guarantees liberty of the press, the right of assembly, and freedom of religious worship. If a near majority of the Court would attempt to erase the Second Amendment from the Constitution, what is to stop them from taking a cavalier approach to other constitutional rights?

While Americans should rejoice in the victory for individual rights in Heller, they should not forget that four justices of the nation’s highest court would have eradicated the right to bear arms. If only a slight majority of the Court will respect the ancient and fundamental right of resistance and self-preservation, Americans should be concerned about the fate of other liberties enumerated in the Bill of Rights.

SCOTUS holds that the states may not execute those who rape children

In Kennedy v. Louisiana, the Supreme Court decided whether the Constitution bars a state from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. The Court held that the Eighth Amendment does prohibit the death penalty for this offense. In its opinion, the Court stressed that the Eighth Amendment’s prohibition against cruel and unusual punishment is not determined by the standards that prevailed in 1791 when the amendment was adopted, but rather the norms of society that currently prevail. The Eighth Amendment, according to the Court, draws its meaning from the evolving standards of decency that mark the progress of a maturing society.

In coming to its decision, the Court based its reasoning on a consensus and its own independent judgment that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments. The consensus referred to by the Court is that in the thirty-seven jurisdictions that have the death penalty, only six of those jurisdictions authorize the death penalty for rape of a child. The Court also made note that no person has been executed for the rape of an adult or child since 1964.

The Courts ruling is best summed up in this paragraph:

"Consistent with evolving standards of decency and the teachings of our precedents, we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons, even including child rape, on the other. The latter claims may be devastating in their harm, as here, but in terms of moral depravity of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability."

On our way to a 1:1 ratio with punitive damages??

Yesterday, the United States Supreme Court decided Exxon Shipping v. Baker. This decision dealt with a punitive damages award arising out of the spill from the Exxon Valdez in 1989. Millions of gallons of crude oil were dumped into Prince William Sound, causing extensive damage to the environment, commercial fishermen, and native Alaskans. Claims were brought for economic losses sustained by individuals who were dependent on the Prince William Sound for their livelihoods. A jury awarded $5 billion against Exxon in punitive damages. The Ninth Circuit reduced the punitive damage award to $2.5 billion. Total compensatory damages were calculated at $507.5 million.



The Supreme Court ordered that the punitive award be reduced even further. The Court was careful to emphasize that this case arose under federal maritime jurisdiction and required review of a jury award at the level of judge-made federal common law. The court adopted a 1:1 ratio as a fair upper limit in these maritime cases. Thus, the jury award of punitive damages was reduced to $5o7.5 million.

I don't care what the Court says. This case will be cited in state and federal courts for the proposition that a 1:1 ratio is preferred and comports with due process. It will be interesting to follow the life of this ruling.

SCOTUS holds assignee of claims claims have standing even if they have no interest in the proceeds of verdict or settlement

The Supreme Court decided Sprint v. APCC, which dealt with an interesting assignment issue. At base, the Court was asked to decide whether a plaintiff who has been assigned rights to pursue a legal claim, but will collect no proceeds from the outcome of the suit, has standing under Article 3 to bring suit. The Court held that such a plaintiff does have standing to sue.

This case arose out of the pay phone industry. A common practice in the industry is for pay phone service providers to assign claims against long-distance carriers to aggregators such as APCC. Because many of the claims are very small, the aggregators take assignments from multiple operators and then bring suit. The aggregator is paid a fee for this service and the settlement amount or proceeds from litigation goes back to the pay phone operator.

Reviewed a number of precedents and held that American courts have long found ways to allow assignees to bring suit. Lawsuits by assignees, including assignees for collections only, are cases in controversies of the sort traditionally amendable to, and resolved by, the judicial process. Emphasize that within the past decade it has expressly held that an assignee can sue based on his assignor’s injuries. The Court, as an example, cited that a qui tam relator possesses Article 3 standing to bring suit under the False Claims Act, which authorizes a private party to bring suit to remedy an injury that the United States suffered.

Supreme Court holds that court of appeals may not increase sentences without a government cross-appeal

In Greenlaw v. United States, the Supreme Court considered whether a United States Court of Appeals acting on its own initiative and without an appeal or cross-appeal from the government, may order an increase in a criminal defendant’s sentence. Greenlaw was convicted of various drugs and weapons offenses and sentenced to 442 months confinement. He appealed his sentence. After rejecting all of Greenlaw’s issues, the Court of Appeals determined that the law required the present sentence to be 15 years longer than the term imposed by the trial court. The Supreme Court reversed.

In making its ruling, the Court of Appeals claimed that Rule 52(b) of the Rules of Criminal Procedure gave it authority to alter the sentence. This rule provides that a plain error that effects substantial rights may be considered even though it was not brought to the Court’s attention. The Supreme Court held that nothing in the text of the rules suggested that the drafters meant to override the cross-appeal requirement. The Court further noted that case law using the plain-error doctrine has only invoked the doctrine to the benefit of the defendant who had petitioned the Court for review on other grounds.

SCOTUS holds right to counsel attaches at a defendant's first appearence before a magistrate

Yesterday in Rothgery v. Gillespie County the Supreme Court held that the right to counsel attaches at a defendant’s first appearance before a magistrate. The Court further held it does not matter whether a prosecutor is also present before the magistrate. Based on an erroneous criminal background check, Rothgery was arrested by Texas police officers for being a felon in possession of a firearm. The officers had no warrant, but promptly brought Rothgery before a magistrate judge. At the hearing the judge informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond.

After his release, Rothgery made several written and oral requests for the appointment of counsel. These requests appear to have been ignored. Rothgery was later indicted by a Texas grand jury for unlawful possession of a firearm by a felon. This indictment resulted in his rearrest and an order increasing his bail to $15,000. When Rothgery could not post it, he was put in jail and remained there for three weeks. Six months after the first appearance before a magistrate, Rothgery was assigned counsel. Counsel promptly obtained a bail reduction and assembled paperwork confirming that Rothgery had never been convicted of a felony. Once the district attorney learned of this, he filed a motion to dismiss the indictment. The court granted the motion.

The case before the Supreme Court began when Rothgery brought a Section 1983 action against the County, claiming that if the County had provided a lawyer within a reasonable time after the first hearing, he would not have been indicted, rearrested, or jailed for three weeks. The District Court and the Court of Appeals held that Rothgery’s claim could not stand because no prosecutor was present during the initial hearing. Thus the right of counsel did not attach.

The Supreme Court of the United States reversed. The Court held that by focusing on whether a prosecutor was present at the initial hearing, the lower courts effectively focused not on the start of adversarial judicial proceedings, but on the activities and knowledge of a particular state official. The Supreme Court reaffirmed that the right to counsel attaches at the first formal proceeding, regardless of whether the prosecutor is in the room. An accusation filed with the judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, that the right of counsel must attach.

SCOTUS holds that states may require defendants with limited capacity to be represented by counsel

In Indiana v. Edwards, the Supreme Court decided an issue regarding self-representation. The case focused upon a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct the trial himself. The Supreme Court granted certiorari to determine the relation of mental competency to the right of self-representation. The Court ultimately held that a state may limit a defendant’s self-representation right by insisting upon counsel at trial on the ground that the defendant lacks the mental capacity to conduct his trial defense alone. The Court recognized that a trial judge has much discretion when making the determination about a defendant’s capacity to represent himself. According to the Court, the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct the trial proceedings by themselves.

In Snavely v. Piedmont Medical Center, the Court of Appeals considered an action for breach of patient-physician confidentiality. At base, Snavely was accompanied to the Emergency Room by her sister-in-law. The sister-in-law also accompanied Snavely into the examination room. While examining Snavely, Dr. Zellner opined that Snavely had contracted hepatitis. He referred Snavely to another doctor to confirm the type of hepatitis. Snavely’s sister-in-law and brother-in-law accompanied her to this second doctor visit. It was confirmed that Snavely had Hepatitis B. Snavely shared this condition with her sister-in-law and brother, and they eventually informed Snavely’s employer, a local restaurant, that she had Hepatitis B. The restaurant fired Snavely and she brought suit against the medical care providers. The trial court granted summary judgment for the providers and the Court of Appeals affirmed.

The Court held that the record was clear that Snavely chose to take family members back to the examination room and did not ask them to leave during the examination. She also willingly shared a pamphlet that discussed Hepatitis B and preventative treatments. Hence, she at least passively consented to disclosure of her medical condition.

S.C. Supreme Court imposes duty to conduct a reasonable investigation on attorneys bringing legal mal claims

In Ex parte: Gregory v. Malloy, the Supreme Court dealt with an attorney's duty to investigate a claim before filing suit and the propriety of sanctions under the Frivolous Civil Proceedings Sanctions Act. The case essentially concerned a dispute over settlement proceeds. George W. Gregory was hired by Annie Melton to try to recover settlement proceeds that Melton believed were being wrongly held by her former attorney Gerald Malloy, who had represented Melton in a wreck case. Gregory eventually filed suit against Malloy alleging conversion and other causes of action. Allegations were made that the settlement proceeds had been improperly removed from a trust account. The trial court hearing the matter found that the funds remained in the trust account at all times and tha the action for conversion was frivolous. Apparently, the funds had not been disbursed because of an ongoing negotiation with Medicaid over a lien. The trial court found the cause of action for conversion was frivolous and awarded $27,364.31 in sanctions.

The Supreme Court affirmed. The court found that had the legal malpractice plaintiff’s attorney conducted a reasonable investigation, he would have known that there was no basis for the conversion action. The court chastised the attorney for relying on Melton's statements about the status of the money and for making inflammatory statements to a newspaper accusing Attorney Malloy of pocketing the settlement money. The court further noted that the legal malpractice plaintiff attorney had time before filing suit to contact Medicaid and/or could have contacted Attorney Malloy to learn of the status of the settlement proceeds. Neither action was taken.

The Supreme Court held that "we find that while an attorney or pro se litigant does not have a duty to consult with a potential defendant prior to filing suit, before alleging conversion against an attorney for misappropriation of client funds or legal malpractice, a reasonable investigation is necessary."

The Supreme Court also affirmed the sanctions imposed.

This is an important legal malpractice decision in South Carolina. Plaintiffs' attorneys contemplating a legal malpractice case are bound to undertake a reasonable investigation before filing a complaint. The attorney cannot simply rely on allegations or statements by the client. This duty, coupled with the Frivolous Proceedings Act, will perhaps lessen the number of frivolous malpractice suits filed in this state.

SCOTUS holds that Gitmo detainees have a right to habeas corpus

In Boumediene v. Bush, the Supreme Court gave the Bush Administration a black eye in its controversial war-on-terrorism policies. The Court held that the Guantanamo detainees have a right to pursue habeas corpus challenges to their detention. The alternative procedures to habeas review crafted by the government under the Detainee Treatment Act, the Court said, do not include adequate legal protections to be a substitute for the constitutional requirements of habeas corpus. Because of the High Court’s ruling, the detainees, some who have been in custody for six years with no judicial determination of the legality of their detention, can ask the federal courts to finally make this basic assessment.

A writ of habeas corpus ad subjiciendum is a legal mechanism requiring that the custodian of a prisoner bring the prisoner before the court for a determination of the lawfulness of incarceration. While bills of rights serve as guideposts for the people to monitor government infringements on their liberties, the "Great Writ" provides a mechanism by which a person can challenge a loss of personal freedom.

The Framers of the Constitution had such high regard for habeas corpus that it is one of the few direct safeguards of liberty enshrined in the actual document. Accordingly, the Constitution provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." With the Suspension Clause, the Framers ensured that the judiciary would have a device to maintain, in the Court’s words, "a delicate balance of governance that is the surest safeguard of liberty."

The federal Government, of course, has not suspended the Great Writ with regard to the detainees. The constitutional language imposes two separate conditions before suspension is permitted: (1) "Rebellion or Invasion" and (2) a threat to "public Safety." Instead of asserting that Al-Qaeda launched an invasion on September 11 and that the public is in danger, Congress instead crafted a poor substitute for habeas review.

The Court found serious defects in the military commission process that the Government created to decide which prisoners are designated as enemy combatants. This designation is important because it could lead to indefinite confinement. The Court found the alternative procedure to be inadequate because the detainee has limited means to present evidence and is often not even aware of the allegations relied upon by the Government.

The Court further held that an appellate body reviewing the commission's work must have the authority to correct errors that occurred in the commission, authority to assess the sufficiency of the Government’s evidence, and the authority to admit relevant, exculpatory evidence that was not introduced in the earlier proceeding. Most importantly, the reviewing authority must have the power to order the release of a detainee if his confinement is unlawful.

Four justices dissented from the Court’s ruling and argued that the majority was meddling in a wartime matter better left to the executive and military. While the dissenters' call for judicial restraint has appeal, the argument rings hollow in light of many of the Bush Administration’s war measures.

Every week we learn more about officially sanctioned abuses of men held in U.S. custody in the War on Terror. U.S. forces have used interrogation techniques such as subjecting detainees to water boarding and extremes of heat, cold, noise and light. Infliction of pain is all too routine and some detainees have died under questionable circumstances. On the domestic front, recent legislation such as the "Police America Act" has given the NSA carte blanche to wiretap Americans without judicial oversight. How much more discretion can we risk giving the executive branch?

The War on Terror is often described as a fight to preserve our system of government and traditions. In Boumediene, the Supreme Court acted to preserve the Great Writ--a foundation of Anglo-American liberty and essential to preservation of limited government. By permitting the detainees, many of whom are undoubtedly nefarious characters, to exercise this basic right while incarcerated in a prison that is de facto subject to American sovereignty, we make a powerful statement to our enemies. We tell them that we have taken Al-Qaeda’s best shot and that our rule of law remains supreme.

Ninth Circuit's chief judge posted porn on his personal website

Only in the 9th Circuit. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, posted porn on his personal website, which could be viewed by members of the public. Oops.
The images included naked women on all fours painted to look like cows and a video of a dude arousing farm animals.

The website is now down.

This was stupid of Kozinski, but the matter should end with his embarrassment. I'll give him props for owning up to this and not engaging in a cover up. Kozinski said that the images were funny, and just a part of human life. He admitted that people send him similar images all the time.

The honesty is refreshing.

The LA Times article on Kozinski and his website can be found here.

Request to serve coffee is not sexual harassment

It seems pretty out there that a plaintiff's attorney would actually bring a Title VII case around a receptionist serving coffee to supervisors. The plaintiff testified that she acquiesced once or twice, but that she found the request demeaning and embarrassing and believed that they "reinforced outdated gender stereotypes."

The district court rejected the claim, and held that "the act of getting coffee is not, by itself, a gender-specific act."

The district court's opinion can be found here.

Walt Wilkins clears the Senate

Congrats to Walt Wilkins on his confirmation as the US Attorney for the District of South Carolina!

WSPA has this story.

Walt has prosecuted several notable cases, including a $20 million mortgage fraud and an international human trafficking and prostitution ring. He has also won several awards, including top prosecution honors from the U.S. Attorney's Office and the U.S. Secret Service.

Capital defense lawyer's suit againt former Chief Judge Wilkins is resolved by Fourth Circuit

In 2006, a Virginia capital defense lawyer filed suit after the 4th U.S. Circuit Court of Appeals, with no explanation, cut in his bill from $38,000 to $10,000 for work on a death penalty appeal to the circuit, the Supreme Court and a clemency petition. The lawyer sued the man who signs off on the payments, 4th Circuit's former Chief Judge William Wilkins, claiming that the cut, without a chance to know why and challenge it, violated his due process rights. The Court held that due process rights were not violated:

At bottom, we find, assuming that he held a protected property interest in a reasonable fee, that Rosenfield was afforded constitutionally adequate procedural protections in the reduction of his requested award. While we are grateful for the service provided by Rosenfield and other CJA attorneys, and while we are committed to providing the level of review described in the Plan and the updated CJA Guidelines going forward, we cannot say that the careful processing of Rosenfield's award here was constitutionally deficient.

SCOTUS holds that counsel has full authority to consent to a magistrate judge supervising jury selection

In Gonzalez v. United States, SCOTUS dealt with the decisionmaking authority of counsel in jury selection. The question presented was whether it suffices for counsel alone to consent to the magistrate judge’s role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent. Petitioner's counsel consented to a magistrate judge supervising jury selection and later Petitioner contended that it was error not to obtain his own consent to the Magistrate Judge's presiding at voir dire. SCOTUS held that there was no error and hold that petitioner’s counsel had full authority to consent to the Magistrate Judge’s role.

SCOTUS holds that section 1981 creates a private right of action for retaliation claims

Yesterday, the United States Supreme Court decided CBOCS West Inc. vs. Humphries which dealt with whether a 150 year old statutory provision encompasses a complaint of retaliation. At issue was 42 U.S.C.A. section 1981(a) which provides that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens."

The case arose out of the complaint filed by Humphries against Cracker Barrel alleging that Cracker Barrel had dismissed him because of racial bias and because he had complained to managers that a fellow assistant manager had dismissed another black employee for race-related reasons. The District Court held that section 1981 did not encompass a claim of retaliation. The 7th Circuit reversed and the Supreme Court granted certiorari.

Based on prior case law and interpretation of similar statutes, the Supreme Court held that section 1981 does encompass retaliation claims and that this principal is well embedded in the law. The Court further noted that considerations of stare decisis strongly supported adherence to this view.

Justices Thomas and Scalia descended. They found it difficult to see where one finds a cause of action for retaliation in the statutory language. They describe section 1981(a) as a straightforward band on racial discrimination in the making and enforcement of contracts. They further noted that retaliation is not discrimination based on race. When an individual is subjected to a reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race, rather, it is the result of his conduct. Because section 1981 by its terms only prohibits discrimination based on race, and because retaliation is not discrimination based on race, Justices Scalia and Thomas would have held that section 1981 does not provide an implied cause of action for retaliation.

Clemson trustees ask for qualified immunity

Summary judgment hearings have been scheduled in the Troutman suit for June. Troutman, who was assistant to Clemson's president, alleges he lost his job, in part, after he spoke out about "excessive" salary increases given to some university administrators. Troutman alleges in his suit that increases in tuition and fees at Clemson weren't justified by cuts in state appropriations, and that trustees "hoarded" cash from tuition increases to build an unrestricted $80 million fund.

Two new Court of Appeals Judges elected

Judge John D. Geathers and Judge James E. Lockemy have been elected by the General Assembly to serve on the Court of Appeals.

Walt Wilkins approved by Senate Judiciary Committee

Assistant U.S. Attorney Walt Wilkins was unanimously approved Thursday by the Senate Judiciary Committee. Walt will hopefully soon receive a vote by the full Senate and be confirmed as the United States Attorney for the District of South Carolina.

Fourth Circuit strikes down Virginia late-term abortion restriction

At base, the panel held that the law does not protect doctors who intend to perform legal, standard second-trimester abortions that accidentally become the type barred by the law. Doctors might, through fear of criminal liability, stop performing standard abortions. Hence, the law is an undue burden on the right to abortions.

The decision can be found here.

Steven Agee confirmed to serve on the United States Court of Appeals for the Fourth Circuit

Here is a statement from the President.


Agee was nominated by President Bush in March after being recommended as a candidate for the post by both of Virginia’s senators, Republican John Warner and Democrat Jim Webb. Warner and Webb made brief floor speeches in support of Agee before the Senate's vote.
The Senate’s confirmation of Agee eased a logjam that has left five vacancies on the Richmond-based appellate court. An earlier Bush nominee for the court withdrew from the process when it became clear the Senate would not hold hearings on his nomination. Warner and Webb credited a process in which the two senators interviewed candidates for the bench and submitted recommendations to Bush.

SCOTUS approves Congress' efforts to criminalize offers or requests for child porn

Yesterday, the United States Supreme Court decided the case of United States v. Williams. This was a facial First Amendment challenge to the "PROTECT Act." This Act was a 2003 Congressional Statute aimed at child-pornography on the internet. The Act was passed in light of earlier Supreme Court holdings that limited child-pornography prohibition to material that could be proved to feature actual children rather than youthful-looking adult actors or virtual images of children generated by a computer.

The 2003 Statute differed from its predecessors insofar as it targeted collateral speech that introduces "virtual porn" and to the child-pornography distribution network. Thus, an internet user who solicits child-pornography violates the Statute, even if the person to whom the request is made possesses no actual child-pornography. Likewise, a person who advertises virtual child-pornography as depicting actual children also falls within the reach of the Statute.

The Supreme Court observed that offers to engage in illegal transactions are categorically excluded from First Amendment protection. Because the Statute criminalized only offers to provide or request to obtain child-pornography the proscription is constitutional. The 11th Circuit Court of Appeals had held that the exclusion of First Amendment protection extended only to commercial offers to provide received contraband. The Supreme Court observed that the 11th Circuit misunderstood the rationale for categorical exclusion. The rationale for categorical exclusion is based not on the First Amendment status of commercial speech, but on the principal that offers to give or receive what is unlawful to possess have no social value and thus enjoy no First Amendment protection.

The 11th Circuit had been concerned that the Statute could be triggered even if no child-pornography existed. For example, an internet user who possess no child-pornography could brag in a chat room that he possess such material and fraudulently offer to provide it to others. The Supreme Court brushed aside this concern by noting that the government can band both fraudulent offers and offers to provide illegal products. Thus, the government can easily forbid punishing fraudulent offers to provide illegal products.

Justices Souter and Ginsberg descended from the Court's ruling. They believed that Congress made an end-run around the First Amendment’s protection of virtual child-pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves. The majority rejected this contention by pointing out that a crime is committed only when the speaker believes or intends the listener to believe that subject of the proposed transaction depicts real children. Thus, virtual child-pornography, as long as it is marketed or described as such, is still available.

The Court concluded its opinion as follows:

Child-pornography harms and debases the most defenseless of our citizens. Both the state and federal governments have sought to suppress it for many years, only to find it proliferating through the new medium of the internet. This Court held unconstitutional Congress' previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.

Preserving error at trial: Counsel's reference to character evidence not enough for Court of Appeals

In State v. Caldwell, the Court of Appeals considered a conviction under the state's peeping tom statute. An issue of error preservation came up regarding character evidence. Caldwell argued that the trial court erred in allowing testimony that he preferred to look at younger boys into evidence as such testimony is improper character evidence under Rule 404, SCRE, as well as the case of State v. Nelson, 331 S.C. 1, 501 S.E.2d 716 (1998). The Court held this issue was not preserved for appeal.

At trial defense counsel clearly objected to the evidence on the basis that any probative value was outweighed by the prejudicial effect. Counsel never mentioned either Rule 404 or the Nelson case. While he did quickly reference character when he argued that the State was attempting "to evoke strong emotion against somebody whose character may or may not be into evidence," the Court of Appeals averred that this argument "appears to have been made in conjunction with his assertion that the statement regarding his sexual orientation was inadmissible."

This is pretty nit-picking. Counsel objected and did reference character evidence in his objection. Certainly the law of SC is that a party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground." Seems like the defendant should have been give the benefit of the doubt on this one.

California Supreme Court strikes down ban on same-sex marriage

A copy of the opinion, can be found here. This is a summary of a the court's holding:

First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to designation of marriage will not deprive opposite-sex couples of any rights and not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of
marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite-couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-couples.

Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

South Carolina to get another district judge?

That would be the case under the Federal Judgeship Act of 2008. The Bill is currently in the Senate Judiciary Committee. Lindsey Graham is a co-sponsor.

Light Blogging this week

I've been in the field interviewing witnesses. More appellate posts will be forthcoming!

SC Court of Appeals makes new law on Rule 59 and timeliness of an appeal

In Camp v. Camp, the South Carolina Court of Appeals offered another chapter in the book of practice under Rule 59(e). The case concerned a family court order requiring father to pay mother a certain amount of child's college expenses. After the order was entered, father filed the following motion for reconsideration:

Please be advised that the defendant through his undersigned attorney will move before the Honorable David Sawyer to reconsider the ruling in his order dated July 26, 2006 and awarding [child] college expenses and costs.
This motion hearing is set to be heard on the 18th day of October, 2006, at 3:45 o'clock p.m.
Please be present to defend if so minded.

A hearing was held on the motion and the motion was denied. Father then appealed. The key issue on appeal was whether the motion to reconsider stayed the time of appeal. If the motion to reconsider did not stay the time for appeal, then father's appeal would have been due on August 26, 2006, several months before the motion was actually heard.

The Court of Appeals held that because the motion for reconsideration was insufficient under SCRCP 7(b)(1), it did not stay the time for appeal. The Court chided the father for not stating with particularity the grounds for relief in the motion. The Court emphasized that father neither identified an error of law by the family court not stated a single ground on which the family court might grant him relief.

Walt Wilkins nominated to be US Attorney for District of SC

Great choice by the President. Let's hope Walt is confirmed soon. No doubt he will serve with distinction.

SC Supreme Court reverses trial court decision excluding witnesses from Jack Sterling case

Yesterday, the State Supreme Court decided State v. Sterling. In this case, the State appealed from a Trial Court Order granting Sterling's Motion to Exclude the Testimony of Four Witnesses. This case, of course, stems from the financial collapse of Carolina Investors and Home Gold Financial. The issue of exclusion arose because Attorney Bill Bannister accompanied Sterling and four other suspects to an interview with SLED. Six months later, Sterling sent Bannister a letter terminating his services.

As his trial approached, Sterling persuaded the Trial Court to exclude the four witnesses who accompanied him and Bannister to the SLED interview. Sterling argued that Bannister's past representation of him and the witnesses violated Sterling’s Sixth Amendment Right to Counsel and that it created an actual conflict of interest.

As an initial matter, the Supreme Court found that the Trial Court's Order was immediately appealable. The Court restated that immediate appeal is proper of any pre-trial order that significantly impairs the prosecution of a criminal case. Because the excluded witnesses personally interacted with Sterling during the relevant time period when the companies were collapsing, their testimonies were critical.

Regarding the exclusion, the State Supreme Court reversed the Order of the Trial Court. The Court emphasized that the Sixth Amendment Right to Counsel had not attached at any point during Bannister’s representation because Sterling had not yet been indicted. The Court also rejected the contention that a actual conflict existed. The Court stated that Bannister represented Sterling and the witnesses and the preliminary stages of the investigation before any proceedings began. Thus, at that time, the witnesses’ interests were not necessarily adverse to Sterling's interest.

Charleston teen competent to stand trial in school bombing plot

WCBD has this story.

Fourth Circuit decides North Carolina campaign finance cases

Election Law Blog has the scoop on North Carolina Right to Life v. Leake.

Showdown over Fourth Circuit Nominees

From the Baltimore Sun:

Storm clouds continue to gather in the Senate over federal judges. Republicans, eager to fill some key appeals court vacancies with conservatives before the end of President Bush's term are stepping up the pressure on Patrick Leahy, the chair of the Senate Judiciary Committee.

Last month, Senate minority leader Mitch McConnell (R-Ky.) secured a pledge from Senate chief Harry Reid (D-Nev.) to send three circuit court nominees to the Senate floor for a vote by Memorial Day.

Ah, but which three nominees? That's the question.

McConnell and Sen. Arlen Specter, the ranking member of Judiciary, are pushing for two nominees for the Fourth Circuit: Robert Conrad and Steven Matthews and one for the D.C. Circuit, Peter Keisler.

SC Supreme Court discusses timeliness of Rule 59 Motion

In USAA Property & Casualty Insurance Company v. Clegg, the Supreme Court of South Carolina dealt with a deadline to file a notice of appeal. In essence, the appellant alleged that the respondent’s notice of appeal was untimely because it was filed more than thirty days after written notice of the trial judge’s order. The appellant did file a Rule 59 motion, which if timely, normally tolls the time limits on filing a notice of appeal. A motion under Rule 59 is timely if it is served not later than ten days after receipt of written notice of the entry of the order. Appellant claimed that she did not receive notice of entry of the Circuit Court order until May 16, 2005, and then filed a motion for reconsideration on May 26, 2005, within the requisite ten-day time period. Because an officer of the court has a duty to be truthful with a tribunal, the Supreme Court accepted this representation that notice of entry of the order was not received until May 16.

The Supreme Court put great weight on counsel’s representation that she did not receive the order until May 16. Counsel for the respondent had filed an affidavit and an accompanying fax transmittal sheet which indicated that appellant’s attorney had faxed a letter to respondent’s counsel on April 19, 2005, which stated that a copy of the Circuit Court’s order had been received. Had the Court not given great weight to the representation of appellant regarding receipt of the order, the appeal would have been dismissed as untimely. The requirement of service of the notice of appeal is jurisdictional. If a party misses the deadline the appellate court lacks jurisdiction to consider the appeal and has no authority or discretion to extend or ignore the deadline for service.

SCOTUS decides Voter ID Case

This week, the United States Supreme Court decided whether a state can require a voter to present a photo ID before casting a ballot (Crawford v. Marion County). The law was challenged by the Democratic Party alleging that it substantially burden the right to vote. The purpose, of course, of the law was to prevent election fraud. The Supreme Court in a splinter decision held that the evidence and the record was insufficient to support a facial attack on the validity of the statute. Thus, the Court affirmed the statute.

The Supreme Court stressed that the prevention of election fraud is a substantial state interest. It also stressed that the State of Indiana provides free photo identification cards to all citizens. The Court found that any inconvenience of making a trip to the motor vehicle department to obtain a photo ID "does not qualify as a substantial burden on the right to vote, or even present a significant increase over the usual burdens of voting."

The Court also noted in its opinion that the Democrats bore a heavy burden because they advanced a broad attack on the constitutionality of the statute, seeking relief that would invalidate the statute on all its applications. The Democrats had argued that the statute would impose a substantial burden on voters who were unable to obtain a birth certificate in order to secure the photo ID. Those without birth certificates could cast a provisional ballot, but would be required to go to the circuit court clerk’s office after voting to file an affidavit. The Supreme Court noted that on the basis of the evidence and the record, it was not possible to quantify either the magnitude of this burden on the narrow class of voters or the portion of the burden imposed on them that is fully justified. The record provided no evidence of a number of voters without photo identification. The record said virtually nothing about the difficulty faced by either indigent voters or voters with religious objections to being photographed.

In summary, the Court held that the record prevented it from concluding that the statute imposed excessively burdensome requirements on any class of voters. Thus, the facial challenged failed.

Justice Scalia, Thomas, and Alito concurred in the judgment of the Court. These three justices would have gone further than to hold that the record was insufficient to show a special burden. They would have held that the burden at issue was minimal and justified. These three justices conclude with the following paragraph:

"The universally applicable requirements of Indiana's voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not ‘even represent a significant increase over the usual burdens of voting. And the State's interests are sufficient to sustain that minimal burden. That should end the matter. That the State accommodate some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence - not a constitutional imperative that falls short of what is required."

South Carolina Court of Appeals reverses trial court order compelling disclosure of hospital peer review materials

In Wieters v. Bon-Secours, the State Court of Appeals considered an order compelling discovery in a defamation action. At base, a physician had his privileges suspended by the hospital, the hospital reported this action to the National Practitioner Databank, and the physician sued the hospital for defamation, alleging that the Databank report contained false information about him. In discovery, Wieters sought information about suspensions of other physicians. The trial court issued an order compelling answers in deposition to general questions regarding other summary suspensions at the hospital. The hospital appealed this order.

The South Carolina Court of Appeals realized that typically an interlocutory order is not immediately appealable. However, an exception to this rule is a discovery order compelling a hospital to produce credentialing files (McGee v. Bruce Hospital System). Because the trial court’s order also dealt with the discovery of peer review materials, the Court of Appeals found that it was immediately appealable.

Next, the Court of Appeals considered the discovery of peer review materials in this case. Again, the trial court had ordered two physicians to reveal knowledge that they learned in their service on peer review committees. The Court noted that under our peer review statutes, public policy favors the protection of peer review material. Without the promise of confidentiality, physicians would not fully and completely participate in the process. The lack of candor and openness would hinder the efforts of hospitals to monitor their own physicians.

The Court of Appeals ultimately reversed the trial court’s order compelling discovery. The Court held that committee actions are safe guarded and protected by the peer review statute. The physicians, therefore, could not be compelled to answer questions about what led to the suspension of other physicians at the hospitals.

From the Judge-said-what files..........

Only South Carolina's Judge Ralph King Anderson, when deciding the scope of the discovery of peer review material, could have written this:

"The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship. The quintessence and elixir of the peer review process is confidentiality."

Say what?? Please put down the thesaurus and step away from the opinion, Judge.

Now wouldn't this sentence work much better:

"Peer Review Statutes recognize that the promise of confidentiality is key to a hospital's peer review process. "

Anyone got any better suggestions?

SCOTUS holds that state law does not affect the enforcement of the Fourth Amendment

Yesterday the Supreme Court in Virginia v. Moore considered whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. The officers in the case stopped Moore because they heard over the police radio he was driving with a suspended license. The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine. Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license is not an arrestable offense in Virginia.

Moore was charged with possessing cocaine with the intent to distribute in violation of Virginia law. He argued that the evidence of the drugs should be suppressed because it was obtained in violation of state law. The case eventually made its way to the Virginia Supreme Court. The Virginia Supreme Court held that because the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit a search incident to a citation, the arrest search violated the Fourth Amendment.

The Supreme Court reversed. The Court concluded that a warrantless arrest for a crime committed in the presence of an arresting officer is reasonable under the Constitution, and that while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. No matter what state law says about making an arrest or issuing a citation, the Court found that the interests justifying a search are present whenever an officer makes an arrest. A search enables the police officer to safeguard evidence and insure his safety.

In sum, while the police officer did violate the state law regarding arrest rules, the Court concluded that it was not the province of the Fourth Amendment to enforce state law. Hence, the Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest (even if the arrest is impermissible under state law).