Kittredge to Supreme Court and Konduros to Court of Appeals

Judge John W. Kittredge is now running unopposed for the state Supreme Court and Judge Aphrodite K. Konduros is running unopposed for the state Court of Appeals.

Making partner at the big firm

The Snark has some great humor here. As usual, he is on the money.

Fourth Circuit holds that FLSA's "consent in writing" requirement does not apply in arbitration proceeding

In LONG JOHN SILVER’S v. COLE, the Fourth Circuit considered whether an employee can be made a party to an FLSA-related civil proceeding without his consent. At base, FLSA § 16(b) contains a consent in writing provision requiring that the employee submit a written statement that he desires to be part of the class. AAA Class Rules do not require opt-in in writing, and the arbitration agreement called for the application of the class rules. LJS argued that FLSA 16(b) created a substantive right that is not waivable.

The Fourth Circuit rejected the LJS contention. The Court found "uncertainty as to whether Congress intended to apply the FLSA § 16(b) provision’s 'consent in writing' requirement in arbitration proceedings," and concluded that the arbitrator was not, therefore, bound by any "clear principle of law" in rendering the Award. The text and legislative history cited by LJS was ultimately not persuasive.

Although LJS’s references to the text and legislative history of the FLSA reassure us of Congress’s intention that the "opt-in" procedure should apply in arbitration as in court proceedings, they fail to also convince us that Congress expressly intended that the "opt-in"procedure could not be waived by the parties’ agreement to an alternate procedure.

Supreme Court reduces attorney fee award in TERI cases

In Lyman v. State, the Supreme Court considered the trial court's award of $8 million in attorney fees to lawyers who garnered an order holding that an act of the General Assembly requiring certain state retirement plan participants to continue to pay into the state retirement system breached a legislatively-created contract as to the class of TERI participants and requiring the return of contributions made by all TERI participants. The trial court awarded fees under the state action statute, but the Supreme Court reversed.

In our view, utilizing common fund methodology when awarding attorneys’ fees pursuant to a fee-shifting statute is wholly inappropriate in light of the underlying theoretical distinction between a common fund source of attorneys’ fees and a statutory source of attorneys’ fees. Although both sources are exceptions to the general rule that each party is responsible for the party’s own attorneys’ fees, the common fund doctrine is based on the equitable allocation of attorneys’ fees among a benefited group, and not the shifting of the attorneys’ fee burden to the losing party. This Court certainly acknowledges that a percentage-of-the-recovery approach may be appropriate under circumstances in which a court is given jurisdiction over a common fund from which it must allocate attorneys’ fees among a benefited group of
litigants. However, where, as here, a fee-shifting statute shifts the source of reasonable attorneys’ fees entirely to the losing party, we find it both illogical and erroneous to calculate fees using the methodology justified under a fee-spreading theory.

Under the trial court's calculation, the $8 million figure resulted in each lawyer for the plaintiffs earning about $6000 per hour worked. The Court further held that an award based on a percentage of the TERI plaintiffs' recovery is inconsistent with the express terms of the statutory scheme. Although the state action statute neither requires that attorneys’ fees be awarded based on an hourly rate, nor places a numerical cap on attorneys’ fees, the court found it significant "that the statute provides that attorneys’ fees assessed to the state agency may only be paid 'upon presentation of an itemized accounting of the attorney’s fees.'" According to the court, the requirement of an "itemized accounting” squarely contradicts the utilization of the percentage-of-the-recovery method in awarding attorneys’ fees under the statute.

Beware of Waiver on Appeal, Even if You Represent the Party That Won Below

Howard Bashman offers sound advice on waiver issues for parties prevailing at the trial court level.

E. Duncan Getchell Jr. asks that his nomination be withdrawn

Getchell has asked that he not be considered for a seat on the Fourth Circuit. He was to fill one of the Virginia seats, but his nomination was going nowhere because of Virginia's two senators. It will be interesting to see what Bush does now.

The Washington Post has this article.

South Carolina Supreme Court rejects medical battery cause of action

In Linog v. Yampolsky, the South Carolina Supreme Court declined to recognize the tort of medical battery. According to the court:

In light of the availability of a medical malpractice claim or a civil battery claim to any patient that is injured by a physician, we believe medical battery would constitute an unnecessary and superfluous cause of action. We see little need to recognize an additional cause of action related to tortious injuries arising out of interactions with medical providers when the tort of medical malpractice fully covers all acts performed in relation to medical services and when the remaining area of private tort law applies to acts not related to medical services. Accordingly, we limit the holdings of Hook, Harvey, and Banks to the extent that they indicate that our State recognizes medical battery and hold that no independent cause of action for medical battery exists in South Carolina. We further hold that in order for a patient to pursue a claim stemming from a situation involving lack of or revocation of consent, a physical touching within the medical context, and a resulting injury, the patient must bring this claim under the medical malpractice framework.

Expert opinion issues arise in Court's affirming conviction of Earle Morris

In State v. Morris, the Supreme Court affirmed the conviction of Earle Morris in the Carolina Investors/HomeGold debacle. On of the more interesting and far reaching aspects of the opinion deals with expert testimony. At trial, the State offered Gregory B. Adams as an expert in corporate and securities laws. Morris argued that Adams was not qualified to opine on issues of corporate and securities laws in South Carolina because Adams is not licensed to practice law in South Carolina. The Supreme Court disagreed and held that generally, "defects in the amount and quality of an expert’s education or experience go to the weight to be accorded the expert’s testimony and not to its admissibility. In South Carolina, expert testimony is admissible where the testimony will assist the trier of fact in understanding the evidence or determining a fact in issue." The Court further held that "the status of Adams’ law license is completely irrelevant to his qualification as an expert. The evidentiary rule governing the qualifications of experts says nothing about professional licensing requirements, and a licensing requirement seems wholly incompatible with Rule 702’s operational framework."

I think the Court went way overboard on this one. To day that the status of an expert's license is "completely irrelevant" to his qualification as an expert is an absurd statement. I know the Supreme Court and the General Assembly are in a turf war over whether the legislature can impose statutory restrictions on expert testimony. But to make such a broad statement about licensure is reckless. Surely when an expert's field is subject to licensure, the holding or failing to hold the requisite license is relevant to the expert's qualification. Perhaps licensure in not dispositive in all cases, but it surely is relevant.

Monday Humor

New Year's Resolutions for lawyers. Here is a taste:



SPEND MORE TIME WITH LOVED ONES


Here's where your lawyering skills come into play because this could seriously eat into your billable hours. After all, what exactly constitutes "more time," and who falls into the "loved ones" category? Where are the code definitions for these terms, anyway? Is there any applicable legislative history? Or has this stuff even made it out of the public notice and comment period yet?
Sure, you could resolve to come into work late Wednesday mornings and take the kids to school, but why get your children accustomed to such luxuries? You know you can't sustain such a regular schedule of child involvement. Worse yet, don't go volunteering to coach Little League. You'll not only anger the partners who need you to stay late, you'll also disappoint your own kids and dozens of innocent children of other parents too busy to impart the wisdom of the slap bunt.
A more realistic resolution within the spirit of this one: Call when you are going to be home late. This is a completely attainable goal. Just ask your assistant to set your phone to dial home each night at the necessary hour with a prerecorded message: "Honey, I am running late. Something came up. I'll be home soon! Love you!"

Bush could fill court vacancies

Here is an interesting op-ed by Carl Tobias on the Fourth Circuit and Dubya's failure to nominate folks to fill vacant slots:

If Bush hopes to fill the Luttig vacancy in 2008 when the presidential election slows judicial confirmations, he should work with Virginia's senators to find a consensus nominee. The place to start (and end) is the five highly-qualified consensus candidates designated in the careful, bipartisan approach that Warner and Webb employed. If Bush ignores the five and the senators, the next president will fill Luttig's seat.

Fourth Circuit holds that district court must give pro se petitioner notice of recharacterization of pleading as 2255 petition

In United States v. Blackstock, the Fourth circuit overruled its opinion in United States v.Emmanuel, 288 F.3d 644 (4th Cir. 2002), which held that a district court may not recharacterize a prisoner’s filing as a § 2255 petition without notifying the prisoner of its intent to recharacterize the motion, warning the prisoner of the effects of recharacterization, and giving the prisoner an opportunity to withdraw or amend his motion. However, the Emmanuel court created an exception "[i]n cases where no adverse consequences will ensue, the district court need not give the movant any notice prior to proceeding with the recharacterization." The Fourth Circuit has now rejected this exception:

Accordingly, we conclude that the Supreme Court’s decision in Castro effectively overruled Emmanuel’s exception to the notice requirement. Under Castro, notice was required before the recharacterization of Blackstock’s 2001 discovery motion; because no notice of the recharacterization was given, the 2001 motion cannot be counted as Blackstock’s first § 2255 petition.

In the Castro opinion, SCOTUS held the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the§ 2255 claims he believes he has.

SCOTUS hears voter ID case

From Voice of America:

The U.S. Supreme Court is hearing arguments Wednesday to determine whether states can require citizens to show government-issued photo identification when they go to vote.
The case comes from the midwestern state of Indiana, which passed a strict identification law in 2005. Indiana Republicans passed the legislation on party lines, saying it would reduce voter fraud.

Democrats and other opponents argue the law addresses a type of fraud that rarely occurs. They also say it hinders poor, elderly and minority residents from voting because they are likely to not have the proper identification. Those groups tend to vote for Democrats.

Banishment an issue in Georgia

In 2008 we don't hear to much about folks being banished for certain crimes. Well, in Georgia the appellate courts are dealing with this issue. Gregory Mac Terry, who has spent the past 12 years in prison after pleading guilty on allegations that he had threatened his estranged wife, had an opportunity for parole in 2001, but he was returned to prison because his banishment from all but one of Georgia's 159 counties meant he couldn't complete a work release program that was not available in Toombs County.

The Georgia Constitution says that "[n]either banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime." But Terry's attorney says in some counties it's common for judges to employ what he calls a disingenuous technique to get around that -- banishing defendants from all but one county.

The Daily Report has this article on the case.

SCOTUS unlikely to overturn 3-drug cocktail for executions

From the LA Times:

The Supreme Court gave a skeptical hearing today to lawyers who are challenging the use of lethal injections to carry out executions in the United States.Death penalty foes had hoped the high court was about to rein in the most commonly used method of execution, but there were few signs of that during today's oral argument.Instead, in comments and questions, most of the justices said they were not convinced that the commonly used, three-chemical compound causes inmates to die a painful death. They also said they were not convinced a better method was available.

Hon. Edwin Messe to speak to Greenville Federalist Society on January 14

One third of the active seats on the U.S. Court of Appeals for the Fourth Circuit are vacant. These vacancies threaten the prompt administration of justice, long held to be a hallmark of the Fourth Circuit. To discuss the Fourth Circuit vacancies and broader issues related to the federal judicial confirmation process, the Greenville Lawyers Chapter of the Federalist Society has invited Edwin Meese III. Mr. Meese served as the 75th Attorney General of the United States from February 1985 to August 1988. As the nation's chief law enforcement officer, he directed the Justice Department and led international efforts to combat terrorism, drug trafficking and organized crime. In 1985, he received the Government Executive magazine's annual award for excellence in management. From January 1981 to February 1985, Mr. Meese held the position of Counsellor to the President – the senior position on the White House Staff – where he functioned as President Reagan's chief policy adviser. As Attorney General and as Counsellor, Meese was a member of Reagan's Cabinet and the National Security Council. He also served as chairman of the Domestic Policy Council and of the National Drug Policy Board.

The Federalist Society invites you to this luncheon meeting of the Greenville Lawyers Chapter. The cost is $10 for lunch. Lunch will be served at noon, and the discussion will begin shortly thereafter. Adjournment is at about 1:15 p.m. RSVP to Bill Watkins at bwatkins@wcsr.com no later than January 10, 2008.

SCOTUS returns to the bench today

From Law.com:

From the moment it returns to the bench today, the Supreme Court will be embarking on a schedule that almost guarantees it will make controversial headlines in the midst of the 2008 presidential campaign.

At times in its history, the high court has deliberately stepped back from the limelight in presidential election years. But for all its talk of judicial modesty, the current Court seems to be ignoring the political calendar and saying, "Bring it on."

The Court's high-profile year begins at 10 a.m. Monday with consideration of Baze v. Rees, a challenge to the lethal-injection formula used in most executions.

The pace continues Wednesday with arguments in Crawford v. Marion County Election Board, which could affect the 2008 election directly by either upholding or striking down voter identification laws -- laws that critics say will suppress Democratic voter turnout.

Then in March the high court takes up District of Columbia v. Heller to decide the hottest-potato question in constitutional law: the meaning of the Second Amendment's right to "keep and bear arms."

And sometime soon after that, most likely, it will rule on the legal rights of Guantanamo detainees in Boumediene v. Bush, a case it first declined to review, then added to its docket.

And sometime soon after that, most likely, it will rule on the legal rights of Guantanamo detainees in Boumediene v. Bush, a case it first declined to review, then added to its docket.

All this is happening under the stewardship of Chief Justice John Roberts Jr., who said during his 2005 confirmation hearings, "I don't think the courts should have a dominant role in society." The Constitution’s Framers, Roberts continued, "would not have sat around and said, 'Let's take all the hard issues and give them over to the judges.' That would have been the furthest thing from their mind."

SC Supreme Court to Hear Greenville Smoking Ban

From the Greenville News:

Greenville's attempt to ban smoking in public places will be back on the front burner when it takes its case to the state Supreme Court on Jan. 9, according to City Manager Jim Bourey.
The city's attorney will present an oral argument at 10:30 a.m. that the city should be smoke free in most public places, officials said.

The city's ordinance to ban smoking was overturned in March of 2006 by a circuit court judge. Judge John Few ruled that the ban was unenforceable, saying it violates the state Constitution by violating a "home rule" provision. He said a city cannot prohibit conduct that isn't unlawful under state laws governing the same subject.

What is a mandate from an appellate court??

In DOE v. CHAO, the Fourth Circuit does a nice job of describing this all important appellate concept. In this Black Lung case, the district court the district court awarded claimant attorney fees for work performed on a contempt motion. However, earlier the district court had denied these fees and Doe did not appeal that ruling. Later on, the district court changed mind and did award fees after the appeal to the Fourth Circuit. The Fourth Circuit held that the denial of fees for work performed on the contempt motion became final after it decided the appeal. Because the mandate rule "forecloses litigation of issues decided by the district court but foregone on appeal or otherwise waived," the district court was not free to deviate from the mandate by reconsidering Buck Doe’s claims for attorneys’ fees that it had denied before appeal and that had not been raised by Buck Doe on cross-appeal.

At base, the Fourth Circuit affirmed that the mandate rule prohibits lower courts, with limited exceptions, from considering questions that the mandate of a higher court has laid to rest. "When matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court." In other words, the mandate is more powerful version of what some might all the law of the case doctrine.