Fourth Circuit allows do-over in products case

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

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

SC Supreme Court grants relief in conflict of interest case

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

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

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

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

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

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

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

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

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

Conrad nomination to Fourth Circuit held up in partisan fight

Lisa Zagaroli has this article that begins:

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

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

Fourth Circuit still the fastest in the nation

From the Charlotte Observer:

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

More on al-Marri ruling

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

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

4th Circuit dangerously expands alleged "wartime power"

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

The Washington Post has this article on the decision.

Fourth Circuit decides defamation suit againt NYT

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

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

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

S.C. Supreme Court upholds death for Freddie Owens

The Greenville News has this story.

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

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

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

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

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

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

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

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

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

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

The full story is found here.

Great story on the young lawyer who argued Heller

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

Next President could immediately appoint 100 judges

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

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

Law.com his this report.