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.