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."
Wednesday, April 30, 2008
Friday, April 25, 2008
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.
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?
"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?
Thursday, April 24, 2008
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).
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).
Wednesday, April 23, 2008
Could Fourth Circuit Nominees Steve Matthews and Robert Conrad be confirmed by Memorial Day?
Probably not. Under pressure from Minority Leader Mitch McConnell, Democratic leader Harry Reid has agreed to a plan to confirm three of President Bush's appellate court nominees by Memorial Day. The question is which ones? There is pressure to confirm Matthews and Conrad, but word is that the Dems plan to let these nominees hang out there.
The WSJ has this editorial on the matter.
The WSJ has this editorial on the matter.
Tuesday, April 22, 2008
Monday, April 21, 2008
Breach of fiduciary duty issue not preserved for review in legal malpractice case
In Spence v. Wingate, the South Carolina Court of Appeals granted a grant of partial summary judgment in a legal malpractice claim. At base, the trial court had held that the law firm did not owe a fiduciary duty to the wife concerning her late husband’s life insurance policy. The law firm represented the wife of the late Congressman Floyd W. Spence. The law firm originally undertook representation to negotiate an agreement on wife’s behalf with four sons of her husband regarding a division of the probate estate. During the course of the representation, the wife also consulted with the law firm about her husband’s federal life insurance policy and informed the law firm that Spence had named her as a beneficiary. The facts developed that shortly before his death Spence did attempt to change the beneficiary on his life insurance policy so the wife would be the sole beneficiary. Prior to this attempted change, Spence had named each of his four sons and the wife as equal beneficiaries. The United States House of Representatives determined that the proceeds should be divided equally among the wife and the four sons.
The trial court held that the law firm did not owe a duty or obligation to the wife with respect to the life insurance policy. The wife argued that a general issue of material fact existed about a fiduciary duty in light of the law firm’s earlier representation of her in the probate matter. On appeal, the law firm contended that the wife’s argument was not preserved for review because the trial judge did not explicitly rule on this argument and the wife did not move to alter or amend the appealed order on that ground. The trial judge’s order cited S.C. Code Ann. section 62-1-109 which provides that a lawyer’s representation of a fiduciary in a probate matter does not, without more, impose on the lawyer responsibilities to the other parties with interests in a fiduciary property. This statute, according to the Court of Appeals, does not address whether attorneys representing fiduciaries could be accountable to such claimants for other reasons. The trial judge’s order did not mention that wife, as a former client of the law firm, had a continuing fiduciary relationship with them that would not be affected by Section 62-1-109. Because there was nothing in the appealed order suggesting that the trial judge determined this fiduciary duty issue, the issue was not preserved for review.
The trial court held that the law firm did not owe a duty or obligation to the wife with respect to the life insurance policy. The wife argued that a general issue of material fact existed about a fiduciary duty in light of the law firm’s earlier representation of her in the probate matter. On appeal, the law firm contended that the wife’s argument was not preserved for review because the trial judge did not explicitly rule on this argument and the wife did not move to alter or amend the appealed order on that ground. The trial judge’s order cited S.C. Code Ann. section 62-1-109 which provides that a lawyer’s representation of a fiduciary in a probate matter does not, without more, impose on the lawyer responsibilities to the other parties with interests in a fiduciary property. This statute, according to the Court of Appeals, does not address whether attorneys representing fiduciaries could be accountable to such claimants for other reasons. The trial judge’s order did not mention that wife, as a former client of the law firm, had a continuing fiduciary relationship with them that would not be affected by Section 62-1-109. Because there was nothing in the appealed order suggesting that the trial judge determined this fiduciary duty issue, the issue was not preserved for review.
Thursday, April 17, 2008
SCOTUS rules in lethal injection case: executions will likely soon begin again in the US
Yesterday the Supreme Court decided Baze v. Rees, which dealt with whether the most common method of lethal injection constitutes cruel and unusual punishment because of the dangers of pain and discomfort to an inmate. The final decision was splintered. Chief Justice Roberts announced the judgment of the court and delivered an opinion joined by Justices Kennedy and Alito. Justice Alito filed a concurring opinion, Justice Stevens and Breyer filed opinions concurring in the judgment. Justices Scalia and Thomas each filed concurring opinions and both joined the opinion of the other. Justice Ginsburg filed a descending opinion and was joined by Justice Souter. In sum, this was a royal mess.
The court’s decision does have a far reaching effect. Thirty-six states and federal government impose capital punishment for certain crimes. Lethal injection is used in every jurisdiction that imposes that penalty. The challenge before the court dealt with the Eighth Amendment's ban on cruel and unusual punishment. The petitioners argued that because of the risks that the lethal injection protocol might not be properly followed, the criminal defendant could suffer significant pain. However, the petitioners did acknowledge in oral argument that if the lethal injection procedure is properly applied, a humane death results. The Supreme Court held that "petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternative, constitutes cruel and unusual punishment."
The court observed that some risk of pain is inherent in method of execution in as much as the prospect of error exists in most procedures. The court further observed that the Constitution does not demand the avoidance of all risk of pain and carrying out executions. Of course, the petitioners did not claim that all risks must be prevented. Instead, the petitioners argued that the Eighth Amendment prohibited procedures that create an "unnecessary risk" of pain. Because of the intrinsic risk of maladministration or accidents with any execution, the court held that a condemned prisoner cannot successfully challenge a state's method of execution merely "by showing a slightly or marginally safer alternative" exists. The court feared that to allow such challenges would "transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology." The court feared that the approach as urged by the petitioners "would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the roll of state legislatures in implementing their execution procedures."
The court also noted that the use of the three-drug cocktail (sodium thiopental, pancuronium romide, and potassium chloride) is difficult to regard as 'objectively intolerable' when this cocktail is used in 36 states. The court recognized that this consensus is probative, but not conclusive. The court placed much weight on the fact that the petitioners agreed that if the first drug of the cocktail is properly administered, the condemned prisoner will feel no pain.
The court averred that "a stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."
In other words, so long as the states continue to use the three drug cocktail and follow protocols similar to that of Kentucky, they will be immune from attack under the Eighth Amendment. This decision should end the moratorium on executions currently in place.
The most interesting part of the court’s decision occurs in an exchange between Justice Stevens and Justice Scalia. Justice Stevens, of course, believes that the death penalty is unconstitutional. Justice Scalia, expressing no opinion of his own on whether the death penalty is proper, notes that it is expressly permissible under the Constitution. Justice Scalia’s opinion ends with this paragraph:
"Purer expression cannot be found of the principal of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress – who retained the death penalty as a form of punishment – is dismissed as 'a product of habit and inattention rather than an acceptable deliberative process.' The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a 'thirst for vengeance.' It is Justice Stevens’ experience that reins over all."
The court’s decision does have a far reaching effect. Thirty-six states and federal government impose capital punishment for certain crimes. Lethal injection is used in every jurisdiction that imposes that penalty. The challenge before the court dealt with the Eighth Amendment's ban on cruel and unusual punishment. The petitioners argued that because of the risks that the lethal injection protocol might not be properly followed, the criminal defendant could suffer significant pain. However, the petitioners did acknowledge in oral argument that if the lethal injection procedure is properly applied, a humane death results. The Supreme Court held that "petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternative, constitutes cruel and unusual punishment."
The court observed that some risk of pain is inherent in method of execution in as much as the prospect of error exists in most procedures. The court further observed that the Constitution does not demand the avoidance of all risk of pain and carrying out executions. Of course, the petitioners did not claim that all risks must be prevented. Instead, the petitioners argued that the Eighth Amendment prohibited procedures that create an "unnecessary risk" of pain. Because of the intrinsic risk of maladministration or accidents with any execution, the court held that a condemned prisoner cannot successfully challenge a state's method of execution merely "by showing a slightly or marginally safer alternative" exists. The court feared that to allow such challenges would "transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology." The court feared that the approach as urged by the petitioners "would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the roll of state legislatures in implementing their execution procedures."
The court also noted that the use of the three-drug cocktail (sodium thiopental, pancuronium romide, and potassium chloride) is difficult to regard as 'objectively intolerable' when this cocktail is used in 36 states. The court recognized that this consensus is probative, but not conclusive. The court placed much weight on the fact that the petitioners agreed that if the first drug of the cocktail is properly administered, the condemned prisoner will feel no pain.
The court averred that "a stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."
In other words, so long as the states continue to use the three drug cocktail and follow protocols similar to that of Kentucky, they will be immune from attack under the Eighth Amendment. This decision should end the moratorium on executions currently in place.
The most interesting part of the court’s decision occurs in an exchange between Justice Stevens and Justice Scalia. Justice Stevens, of course, believes that the death penalty is unconstitutional. Justice Scalia, expressing no opinion of his own on whether the death penalty is proper, notes that it is expressly permissible under the Constitution. Justice Scalia’s opinion ends with this paragraph:
"Purer expression cannot be found of the principal of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress – who retained the death penalty as a form of punishment – is dismissed as 'a product of habit and inattention rather than an acceptable deliberative process.' The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a 'thirst for vengeance.' It is Justice Stevens’ experience that reins over all."
Wednesday, April 16, 2008
Fourth Circuit decides major Confrontation Clause Case dealing with state rape shield laws
In Barbe v. McBribe, the Fourth Circuit Court of Appeals dealt with a confrontation clause issue. The issue presented to the court was whether the district court erred in holding that Barbe’s rights under the confrontation clause were not violated when the state trial judge mechanistically applied the state’s rape shield statute without evaluating whether the interests served by the statute justified the total limitation enclosed upon Barbe’s federal constitutional right to cross-exam an expert witness. Barbe was seeking habeas corpus relief under Section 2254. He had been convicted in 1999 in West Virginia of 8 counts of sexual abuse. Six of the 8 counts related to his granddaughter. In order to bolster the granddaughter’s testimony, the state prosecutor called an expert witness in clinical psychology to opine that the granddaughter exhibited the profile of a sexually abused child and that she had in fact been sexually abused. Barbe sought to cross-exam the expert based on other incidents of sexual assault. Defense counsel explained to the court that he sought to provide an alternative explanation for why the granddaughter exhibited the psychological profile and problems. A trial judge forbade this cross-examination. According to the trial judge, under the West Virginia rape shield law other claims of sexual abuse could be admitted only if the defense could prove the falsity of the other claims. Of course, in this case, the defense did not want to prove the falsity of the other claims. The defense depended on the other claims being true to explain the source of the profile.
The Fourth Circuit held that Barbe should have been granted a writ of habeas corpus. The court held that “his Sixth Amendment confrontation right was indisputably contravened, however, by the state circuit court’s application of a per se ruling restricting cross-examination of the prosecution’s expert under the state rape shield law.” The Fourth Circuit held that the state court’s ruling was in clear conflict with the Rock-Lucas principal established by the Supreme Court of the United States in 1991. The state court’s decision involved an objectively unreasonable application of federal law by ignoring the Rock-Lucas principal.
The Fourth Circuit held that the state court should have considered: (1) the strength of the state’s interest that weigh against admission of excluded evidence, (2) the importance of the excluded evidence to the presentation of an effective defense, and (3) the scope of the evidence ban being applied against the accused. The court found that each of these factors favored permitting cross-examination of the expert witness. Accordingly, the court remanded for the issuance of writ of habeas corpus.
The Fourth Circuit held that Barbe should have been granted a writ of habeas corpus. The court held that “his Sixth Amendment confrontation right was indisputably contravened, however, by the state circuit court’s application of a per se ruling restricting cross-examination of the prosecution’s expert under the state rape shield law.” The Fourth Circuit held that the state court’s ruling was in clear conflict with the Rock-Lucas principal established by the Supreme Court of the United States in 1991. The state court’s decision involved an objectively unreasonable application of federal law by ignoring the Rock-Lucas principal.
The Fourth Circuit held that the state court should have considered: (1) the strength of the state’s interest that weigh against admission of excluded evidence, (2) the importance of the excluded evidence to the presentation of an effective defense, and (3) the scope of the evidence ban being applied against the accused. The court found that each of these factors favored permitting cross-examination of the expert witness. Accordingly, the court remanded for the issuance of writ of habeas corpus.
Sunday, April 06, 2008
Light Blogging this week
I'll be in trial the week of April 7, 2008. Wish me luck!!!
Check back next week for posting.
Check back next week for posting.
Thursday, April 03, 2008
States file suit against EPA on global warming
From the AP:
Officials of 18 states are taking the EPA back to court to try to force it to comply with a Supreme Court ruling that rebuked the Bush administration for inaction on global warming.
In a petition prepared for filing Wednesday, the plaintiffs said last April's 5-4 ruling required the Environmental Protection Agency to decide whether to regulate greenhouse gas emissions, including carbon dioxide, from motor vehicles.
The EPA has instead done nothing, they said.
"The EPA's failure to act in the face of these incontestable dangers is a shameful dereliction of duty," Massachusetts Attorney General Martha Coakley said.
The petition asks the U.S. Court of Appeals for the D.C. Circuit to require the EPA to act within 60 days.
Officials of 18 states are taking the EPA back to court to try to force it to comply with a Supreme Court ruling that rebuked the Bush administration for inaction on global warming.
In a petition prepared for filing Wednesday, the plaintiffs said last April's 5-4 ruling required the Environmental Protection Agency to decide whether to regulate greenhouse gas emissions, including carbon dioxide, from motor vehicles.
The EPA has instead done nothing, they said.
"The EPA's failure to act in the face of these incontestable dangers is a shameful dereliction of duty," Massachusetts Attorney General Martha Coakley said.
The petition asks the U.S. Court of Appeals for the D.C. Circuit to require the EPA to act within 60 days.
Wednesday, April 02, 2008
SC residents can still use driver's license in boarding aircraft
South Carolina residents will continue to be able to use their driver's licenses to get on airplanes and into federal buildings, the Department of Homeland Security said Monday as it granted the state an extension to comply with a new federal ID law.
The AP has this report.
The AP has this report.
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