Monday, March 31, 2008

SC Supreme Court upholds Greenville Smoking Ban

On January 1, 2007, a Greenville County ordinance went into effect that banned smoking from a number of places, including restaurants and bars. A few bar and restaurant owners brought suit and a trial judge (The Hon. John Few) permanently enjoined the city from enforcing the ordinance. The trial court held that the ordinance was preempted by state law and that it violated the South Carolina Constitution. The trial court's order can be found here.

The South Carolina Supreme Court has now reversed. The court held that the ordinance was not preempted by state law and is not inconsistent with the Constitution of South Carolina. The trial judge had determined that the General Assembly intended to prohibit local government from imposing any restriction on indoor smoking beyond the restrictions contained in the Clean Indoor Air Act. The trial court focused on a portion of S.C. Code Ann. section 16-17-504 which stated that "any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation."

The state supreme court held that the trial court erred when it "isolated a phrase from section 16-17-504 and interpreted it in such a way as to accomplish preemption under the Clean Indoor Air Act." The supreme court further stated that “it is patent that the language regarding ‘ordinances’ found in section 16-17-504 is intended to relate specifically to the distribution of tobacco products" and not the regulation of indoor smoking.

The trial court had also found that the ordinance violated Article VIII, section 14 of the South Carolina Constitution. The trial court held that because a violation of the Clean Indoor Air Act constitutes a misdemeanor punishable by a fine, and the Greenville ordinance provides for a fine for smoking in areas not prohibited by state law, the city unconstitutionally criminalized a matter not illegal under the State of South Carolina’s criminal laws.

Article VIII deals with the creation of local government and limits the power of local government in certain areas. The supreme court construed the Greenville Smoking Ordinance as a non-criminal law. Accordingly, the provisions of Article VIII that prohibit a local government from setting aside the criminal laws of the state were not implicated. The supreme court observed that violation of the smoking ordinance constituted an infraction or a public nuisance and thus did not criminalize any conduct.

Accordingly, the court reversed the trial judge’s decision to enjoin the Greenville smoking ban.

While the public has followed this case, the decision does not change much about smoking in bars. Many bars learned that business actually increased because of the ban. Patrons could enjoy a brew and eats without smog.

SC Supreme Court holds that filing of an ODC complaint is not grounds to remove appointed PCR counsel

In Richardson v. State, the State Supreme Court dealt with the issue of a PCR judge refusing to relieve PCR counsel. The court addressed this matter because of the recurring problem of PCR applicants seeking repeatedly to have their appointed counsel relieved. The court reiterated that there is no constitutional obligation to appoint counsel in a PCR matter. The court further noted that a PCR applicant is not entitled to appointed counsel of his choice. The applicant has the right to reject or discharge court-appointed counsel and proceed pro se or to retain his own counsel. The court observed that a common tactic in PCR matters is for the applicant to file a complaint against appointed counsel with the Office of Disciplinary Counsel. The complaint has been used as a basis for a motion to relieve counsel. The court cautioned the trial bench that the filing of a disciplinary complaint should not result in automatic removal of appointed counsel. If this were the case, applicants could easily abuse the system and obtain substitute counsel by the simple matter of filing an ethical complaint with the Office of Disciplinary Counsel.

The week in review

Check out Blawg Review #153, for the best of blog posts from last week. Lot's of good stuff on the recent SCOTUS rulings. Declarations and Exclusions does a nice job hosting this one.

Thursday, March 27, 2008

SCOTUS hears arguments on pro se representation by the mentally ill

When mentally ill defendants are found competent to stand trial, does that also mean they are competent enough to represent themselves in court?

Tony Mauro, over at, has this discussion on standard of competence for self-representation. The case concerns a diagnosed as a schizophrenic who was denied his right to represent himself at a 2005 trial for a department store robbery and shooting.

Wednesday, March 26, 2008

SCOTUS decides Medellin, checks executive power, and limits the reach of the ICJ

Yesterday SCOTUS decided MEDELLIN v. TEXAS. This was one of the most important cases of the term with huge implications for American sovereignty. At stake was whether the International Court of Justice could command state and federal courts to alter PCR procedural default rules. President Bush and the ICJ said yes, but thankfully, SCOTUS said no. The decision is a blow to unchecked executive power, which the Bush Administration is so fond of, and a blow to efforts of international courts to erode American sovereignty.

Here's a synopsis of the case:

Jose Ernesto Medellin is a Mexican national who has lived in the United States since pre-school. Medellin was also a member of a Texas street gang. He was convicted of murder and sentenced to death in Texas after his significant participation in the gang rape and killings of two Houston teenagers. After a trial and a direct appeal, Medellin raised a claim under the Vienna Convention when he filed an application for post-conviction relief in state court. The state court held that the Vienna Convention claim was procedurally defaulted because Medellin had failed to raise the claim at trial or on direct appeal. At base, Medellin argued that as a Mexican national he was entitled to have the Mexican authorities notified of his arrest and that the failure to do so affected the validity of his conviction and punishment.

Medellin turned to the federal courts and filed a 2254 petition. While the federal courts litigated this matter, the International Court of Justice held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform Medellin and 50 other Mexican nationals of their rights under the Vienna Convention. The ICJ held that the United States was obligated to review these convictions and that procedural default rules of the state and federal courts should not be a barrier.

President George Bush entered the mix after receiving the ICJ decision. Bush ordered state courts to give affect to the ICJ’s decision.

In considering the claims of Medellin, the Supreme Court first considered whether the ICJ judgment constituted a binding obligation on the federal courts and the state courts of the United States. Medellin invoked the supremacy clause to argue that the Vienna Convention was a supreme law of the land and that state law or federal rules preempting certain post-conviction relief matters must yield.

The supreme court recognized that treaties may comprise international commitments, but they are not binding domestic law unless Congress has enacted implementing statutes or the treaty conveys an intention that it is self-executing. The court observed that there is no self-executing language and that the signatories of the Convention understood that if a state failed to perform an obligation under a judgment of the ICJ, then the other parties to the action could petition the United Nations Security Council for assistance. This was the understanding at the time of ratification.

The court next turned to the contention that the ICJ judgment was binding on state courts by virtue of George Bush’s declaration that it was. The court observed that the President has a number of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. Congress has the responsibility of passing legislation if it desires to transform a non-self-executing treaty into a self-executing treaty. The President cannot assume legislative power under our Constitution.

Accordingly, the Supreme Court affirmed the Texas Court of Criminal Appeals and its refusal to re-exam Medellin’s claims based on the directives of the ICJ and President Bush.

Monday, March 24, 2008

SCOTUS removes much discretion from trial judges in Batson hearings

On March 19, 2008, the Supreme Court decided Snyder v. Louisiana. In this case Snyder was convicted of first degree murder in Louisiana and sentenced to death. The case for before the Supreme Court dealt with a decision of the Louisiana Supreme Court to reject Snyder’s claim that the prosecution violated Batson v. Kentucky, when it allegedly used some of its preemptory jury challenges based on race.

The Court focused on a strike used on Jeffrey Brooks, a college senior who was also student-teaching. In offering race-neutral reasons for striking Mr. Brooks, the prosecutor informed the trial court that Brooks looked nervous during questioning and that Brooks raised the concern that he would miss class. The prosecutor stated “my main concern is for that reason…that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase.”

The Supreme Court noted that the trial judge has much discretion when evaluating race-neutral reasons for striking a juror. The Court further noted that “deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.” However, the Court found nothing in the record to show that the trial judge actually made a determination regarding Mr. Brooks’ demeanor. The trial judge should have made a specific finding in the record. Because there was no specific finding in the record, the Court refused to presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous.

With regard to Mr. Brooks’ concern about missing student teaching time, which was supported by the record, the Court found that this scenario was highly speculative. “Even if Mr. Brooks had favored a quick resolution, that would not have necessarily led him to reject a finding of first-degree murder. If the majority of jurors had initially favored a finding of first degree murder, Mr. Brooks’ purported inclination might have led him to agree in order to speed the deliberations. Only if all or most of the jurors had favored the lesser verdict would Mr. Brooks have been in a position to shorten the trial by favoring such a verdict.”

The court also cited that the trial was very short. The Court believed the prosecutor anticipated a short trial and thus would have known that jury service would not have seriously interfered with Mr. Brooks’ ability to complete his student teaching. This fact, in the Court’s mind, rendered the prosecution’s justification for striking Mr. Brooks “suspicious.” The Court’s suspension was reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that, in the Court’s opinion, “appeared to have been at least as serious as Mr. Brooks’.” Accordingly, the Supreme Court held that the trial court committed clear error in its ruling on the Batson objection.

Justice Thomas and Justice Scalia dissented. The dissenters argued that the majority was “only playing lip service to the pivotal role of the trial court” in evaluating a Batson challenge. The dissenters would have deferred to the trial court’s expertise in making credibility determinations and would have affirmed the judgment below.”

I believe that the Supreme Court’s decision will only lead to more appellate litigation of Batson issues. This opinion, unfortunately, strips the trial judges of much discretion in handling Batson challenges. Only a trial judge, thoroughly familiar with a particular situations and the lawyers involved can make a decision on whether a ground supporting a strike is neutral rather than discriminatory. Batson hearings usually happen very quickly. If the defendant makes a Batson motion, the prosecutor (in my experience) receives 10 to 15 minutes to gather his thoughts and to explain his strikes to the Court. Much of this depends on the prosecutor’s demeanor and the Court’s “feel” for the situation. This real-world discretion required to handle Batson challenges has now been stripped by Snyder v. Louisiana.

We must also not forget that Batson applies to civil cases as well. There is nothing in the Court’s opinion in Snyder to indicate its holding is limited to criminal cases. Hence, the Supreme Court has made trial practice for the ordinary lawyer much more difficult.

Thursday, March 20, 2008

SC Supreme Court hears Home Gold Conflict of Interest Issue

At issue is the trial court's ruling that found a conflict of interest because Bill Bannister represented certain witnesses and John M. "Jack" Sterling in interviews with agents investigating the failures of Carolina Investors and HomeGold. The witnesses are now ready to roll on Sterling. Sterling never waived attorney-client privilege, and the only parties that were unquestionably aware of the representation of multiple parties were the attorney and the state.

The Greenville News has this story.

Wednesday, March 19, 2008

Smart money is on the right to bear arms being an individual right

"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. "

By all accounts, arguments went well yesterday in Heller. The Court seems primed to reject the assertion that the right to bear arms exists only in connection with state-regulated militias. If gun ownership is limited to "state militias," Chief Justice Roberts asked, why does the Constitution say "the right of the people"?

It is no different than if the First Amendment were prefaced with "An educated population being necessary to intelligent use of the franchise, Congress shall make no law abridging the freedom of the press." Surely, no one would argue that the freedom of the press is limited to educational setting because of the prefatory language. It is really the same thing with the Second Amendment. The right is an individual right.

Good cause requirement for sex offender registration interpreted broadly

In State v. Hicks, Hicks was indicted for criminal sexual conduct with a minor (Victim). At trial, Hicks pled guilty to the lesser offense of assault and battery of a high and aggravated nature. (ABHAN). Although ABHAN, the crime to which Hicks pled guilty, is not included in the list of crimes for which sex offender registration is required under Section 23-3-430 of the South Carolina Code , Section D of the statute provides that:"[U]pon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person of an offense not listed in this article, the presiding judge may order as a condition of sentencing that the person be included in the sex offender registry if good cause is shown by the solicitor." The judge required Hicks to register as a sex offender. Hicks appealed and the Court of Appeals affirmed:

Hicks contends the State failed to show “good cause” sufficient to require him to register as a sex offender. In the reconsideration hearing, the court heard from Victim’s father that, contrary to defense counsel’s statement during the initial sentencing, Hicks did indeed know where Victim lived; Hicks lived within a half mile of Victim’s house. Describing the nature of Hicks’ behavior, Victim’s father stated Hicks had been by Victim’s house on numerous occasions, both before and after the ABHAN. During the course of several of these occurrences, Hicks made gestures towards Victim’s father that could be interpreted as confrontational or predatory.

The court also heard from Victim’s mother a second time, but she was limited to providing information she had not given during the initial sentencing. She confirmed Victim’s father’s statement that, not only did Hicks know where Victim lived, but that it was her understanding from Victim that Hicks had actually been in Victim’s house on two occasions. This new information combined with the previous statements Victim’s mother made regarding the many girls, similar in age to Victim, who lived in the same neighborhood within a half mile of Hicks, supports the circuit court’s finding that good cause was shown.

This seems pretty flimsy to have someone register as a sex offender. So Hicks knows where the Victim lives and has mad gestures towards her. The circuit court already had included as a condition of probation that Hicks not live within five miles of Victim’s family and have no contact with the family or Victim. That seems a much better and more logical protection than having him register as a sex offender.

Tuesday, March 18, 2008

SCOTUS to hear arguments in DC guns case today

ScrippsNews has this article.

This is probably the most important case of the term. I'll post more on this topic later.

Monday, March 17, 2008

Notice and Hearsay

In Thomas v. Dootson, the central issue of the case was whether Dr. Dootson had notice that a surgical drill overheated prior to the injury to the patient. Testimony was offered that an assistant had told Dootson that the drill had malfunctioned on prior occasions. This testimony was objected to as hearsay. The Court held that it was not hearsay because it was not offered for the truth of the matter, but notice.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), SCRE. Conversely, statements offered not for the truth of the matter asserted, but rather as evidence of notice, do not constitute hearsay. Player v. Thompson, 259 S.C. 600, 610, 193 S.E.2d 531, 535 (1972).

From an evidentiary standpoint, the facts and analysis in Player mirror those in this case. In Player, the court held testimony a filling station attendant told the defendant she had slick tires prior to the accident did not constitute hearsay. Id. The testimony was not offered to prove the tires were slick, but only to establish the defendant had notice of her tires’ condition prior to the accident. Id. Other evidence established the slickness of the tires. Id.

Similarly in this case, Thomas attempted to offer additional testimony from Rivers that Dr. Dootson had been warned the drill was hot prior to the injury. The trial court improperly ruled the statement was hearsay. The testimony, just as in Player, was not offered for the truth of the matter asserted, but rather as evidence of notice. The argument for admissibility is at least equally strong here as in Player, for here we are presented with a concession concerning the defective condition of the surgical drill. It was error to exclude this testimony.

But doesn't having notice depend on the statements being truthful?

Wednesday, March 12, 2008

South Carolina Supreme Court hints that SC might recognize tort for spoliation of evidence

In Austin v. Beaufort County, Austin sued the sheriff's department after the department destroyed evidence related to the drug overdose of Austin's son. Austine claimed she was entitled to damages because the destruction of evidence impaired her ability to bring a wrongful death action. In an amended complaint, Austin explained her theory regarding her son's death as follows: “On July 25, 2001, decedent was assaulted by unknown assailants who inflicted bodily injuries and a fatal dose of drugs on decedent.” The trial court granted summary judgment and the Supreme Court affirmed. In affirming, the Court hinted that SC law might recognize a tort claim for spoliation.

Under the particular facts of the instant case, it is clear that appellant’s allegations do not rise to the level of stating a claim. First, although appellant contends there is a potential wrongful death action, no tortfeasor has been identified, beyond the “unknown assailants” mentioned in the complaint. Therefore, it is merely speculative that a potential civil action for wrongful death exists. Second, it obviously follows that the Sheriff’s Office, could not have actually known of the potentiality of a lawsuit, especially given the fact that the Sheriff’s Office apparently concluded that Bair’s drug overdose had been self-inflicted. Certainly, appellant never notified the Sheriff’s Office of the fact that she sought to pursue a civil lawsuit related to her son’s death.

Tuesday, March 11, 2008

SC Supreme Court holds that plaintiff may bring negligent hiring and supervision claim even after the employer admits vicarious liability

In James v. Kelly Trucking Co., the Supreme Court considered whether a plaintiff in South Carolina is precluded, as a general matter, from maintaining a cause of action for negligent hiring, training, supervision, or entrustment after an employer stipulates that it is vicariously liable for its employee’s negligence. The court held that the plaintiff would not be precluded:

Primarily, we think the argument that an independent cause of action against an employer must be precluded to protect the jury from considering prejudicial evidence presumes too much. Our court system relies on the trial court to determine when relevant evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, SCRE. Similarly, we rely on the trial court to craft instructions describing what a jury may or may not infer from a particular piece of evidence, and we grant the trial court discretion to give such instructions to the jury at the time such evidence is introduced, when charging the jury at the close of the case, or at any proper time in between. In our view, the argument that the court must entirely preclude a cause of action to protect the jury from considering prejudicial evidence gives impermissibly short-shrift to the trial court’s ability to judge the admission of evidence and to protect the integrity of trial, and to the jury’s ability to follow the trial court’s instructions.

Monday, March 10, 2008

Check out Blawg Review #150

For the best posts on law related matters from last week, please drop by Trust Advisor for the the hosting of Blawg Review # 150.

Friday, March 07, 2008

Fourth Circuit holds that to be convicted of aggravated indentity theft a defendant must assume the identity of a specific person

In UNITED STATES v. MITCHELL, Mitchell used a false driver’s license and counterfeit checks in the name of Marcus Jackson to buy merchandise and return it for cash refunds. He was convicted of aggravated identity theft. Mitchell argued that the district court erred when it held as a matter of law that the use of another person’s name by itself constitutes the use of a means of identification of another person (a specific individual) under § 1028A. The Fourth Circuit agreed:

As we have said, a bare name may not be sufficiently unique — indeed, it is not likely to be sufficiently unique — to identify a specific person. That is the case here, as the undisputed evidence confirms. Two persons named Marcus Jackson have a driver’s license issued by the Georgia Department of Driver Services. The false Georgia driver’s license used by Mitchell bore the name Marcus Jackson, but that name used alone did not identify one of the real Marcus Jacksons. In other words, the name alone was not sufficient to identify a specific Marcus Jackson, as required by the statute.

Thursday, March 06, 2008

Scalia on the Living Constitution

Got to love Scalia. The man lays it on the line.

Scalia compared the philosophical shift on the Constitution with the sales pitch of a stock broker who tells a wary investor that poor economic performance is merely a case of the markets resting before climbing again.

"Get real. The stock market is not a mountain climber, and the Constitution is not a living organism," Scalia said. "It's a legal document."

Tuesday, March 04, 2008

Fourth Circuit issues opinion on standing

In NEESE v. JOHANNS, tobacco producers challenged the Secretary of Agriculture’s implementation of the Fair and Equitable Tobacco Reform Act of 2004 ("FETRA"). The Act authorized the Secretary to offer buy out contracts to tobacco producers who had previously operated under a fixed quota system, which had been in place since the late 1930s. The producers accepted a series of contracts for annual payments over the course of ten years and then assigned those contracts, and all accompanying rights, to third parties in exchange for a lump sum payment. After the assignment, the producers argued that the Secretary improperly calculated their contract payouts under FETRA and asserted an entitlement to additional payments. The Fourth Circuit affirmed the district court's decision that the producers lacked standing.

To have standing to bring this action, appellants must allege a "personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v.Wright, 468 U.S. 737, 751 (1984). To satisfy the injury-in-fact element, a plaintiff must demonstrate "an invasion of a legally protected interest which is . . . concrete and particularized." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

In this case, any claim to a specific sum of money must flow from the contractual relationship between the Secretary and the producer. See 7 U.S.C. § 518b(a) ("The Secretary shall offer to enter into a contract. . . under which the producer of quota tobacco shall be entitled to receive payments under this section . . . .") (emphasis added). Appellants, however, cannot maintain such a claim. After accepting the Secretary’s offer of payment contracts without reservation and entering into those contracts, they transferred all their rights under those contracts to third parties. Quite simply, appellants have no rights left to invoke and, therefore, lack standing to pursue further contracts or payments from the Secretary.

Monday, March 03, 2008

Night out on the town for Ricky Raccoon

Only in South Carolina do have opinions like the one in Singleton v. Sherer. A mild mannered raccoon comes home after a night on the town and takes a hunk out a its owner and others. Lawyers are called and pleadings filed. This opinion could only be better if a possum had done the damage. The facts are pretty straightforward:

A raccoon bit Roger Singleton while he was on George Sherer and Julie Underwood’s jointly owned property. Approximately a year before this incident, Singleton rescued the raccoon from the yard of a home where he was delivering furniture “but wanted someone else to take care of it.” Subsequently, Underwood agreed to take the raccoon. According to Singleton, he was familiar with the raccoon from the time it was removed from the wild and placed in Underwood’s care. Indeed, Singleton “would come to [Underwood’s] home from time to time and was often around the [raccoon]. He would play with the raccoon and he liked it.”

Singleton testified the raccoon was neither vicious nor dangerous and had never bitten anyone prior to the incident. The night before the incident, the raccoon escaped from his outdoor pen and reappeared the next morning in a “disheveled” state. After letting the raccoon into the house, Underwood attempted to calm the animal by picking him up and feeding him. However, when her dog entered the room, the raccoon bit Underwood’s arm severing an artery and median nerve. Underwood was taken by ambulance to the emergency room accompanied by her children.

Being afraid Ricky Raccoon would hurt her dog, Underwood calls her father, who then call Singleton for help. The father told Singleton to wait for him to arrive with nets and other equipment to subdue the creature, but Singleton entered the home alone and was attacked by the raccoon (apparently still suffering ill effects of its night on the town).

Singleton brought suit alleging that Underwood was negligent. The trial court found no negligence and also concluded that even if Underwood was negligent Singleton’s own negligence was, as a matter of law, greater than any negligence attributable to Underwood. The Court of Appeals affirmed:

The undisputed facts establish Singleton freely and voluntarily exposed himself to a known danger which he understood and appreciated. By Singleton’s own admission, his actions on the day of the incident were “pretty stupid.” Any factual issues which might exist as to Sherer and Underwood’s contributory negligence cannot alter the inescapable conclusion Singleton’s negligence exceeded fifty percent. Under South Carolina jurisprudence, where evidence of the plaintiff’s greater negligence is overwhelming, evidence of slight negligence on the part of the defendant is simply not enough for a case to go to the jury. See Hopson v. Clary, 321 S.C. 312, 314, 468 S.E.2d 305, 307 (Ct. App. 1996) (noting where the evidence as a whole is susceptible to only one reasonable inference, no jury issue is created). The trial court did not err in barring Singleton’s claim under the assumption of risk doctrine because Singleton was more than fifty percent at fault in causing his injuries.

Yep, once your client admits his own actions were "pretty stupid," summary judgment typically follows.