S.C. Supreme Court upholds statute prohibiting disruption of the schools

Under S.C. Code Ann. Section 16-17-420 "It shall be unlawful: (1) For any person wilfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon . . . ." In In Re Amir X. S., a student challenged the statute as overbroad and vague. Here is a description of just what the little darling allegedly did to violate the statute:

Appellant's teacher testified to the family court that for a period of over two hours, Appellant behaved in a way that was wilfully disruptive and unnecessary. Appellant paced about the classroom and refused to remain in his desk; cursed to his teacher and other students; and harassed one student with comments about the student's mother. For over two hours, Appellant's teacher patiently attempted to reason with him regarding his classroom behavior, to no avail. Left with no other choice but to remove Appellant from the classroom so that she and the other students could focus on their educational objectives, the teacher asked another staff member to escort Appellant from the room. Appellant, however, did not stop there. Appellant began yelling and cursing, swung a punch at his teacher as he left the classroom, and continued his tirade as he was escorted down the hall.

Just another day in the public schools. The Supreme Court rejected the overbreadth argument because, in the Court's view, First Amendment rights of expression are not impermissibly curtailed--only disruption of the public schools. As for the vagueness challenge, the Court held that the child did not have standing because his conduct fell within the narrowest part of the statute.

Big changes in the Fourth Circuit are upcoming

The Fourth Circuit is the most conservative in the nation, but maybe not for much longer. Check out this post at Southern Appeal.

Latham and Watkins is the pick this year for SCOTUS clerks

Here is an interesting article about SCOTUS clerks and their choices of firms.

Victory for tobacco companies in DC Circuit

From Law.com:

A federal appeals court has blocked a landmark judgment against the tobacco industry, allowing the companies to continue selling "light" and "low tar" cigarettes until their appeals can be reviewed.

The decision by the U.S. Court of Appeals for the D.C. Circuit also allows the companies to continue for now the advertising campaigns that a federal judge in August ruled were misleading.

S.C. to Raise Minimum Auto Limits in 2007

Starting Jan. 1, minimum coverage will go to $25,000 of bodily injury per person in a wreck, up from $15,000; $50,000 of bodily injury per accident, up from $30,000; and, $25,000 of property damage coverage, up from $10,000.

Insurance Journal has this article.

S.C. Court of Appeals issues right to counsel opinion in sex offender case

In State v. Roberson, Roberson was arrested for failing to register as a sex offender pursuant to sections 23-3-460 and 23-3-470 of the South Carolina Code. Roberson was released on bond the day after his arrest. The terms of the bond required Roberson to appear for roll call at the term of general sessions court in Dorchester County beginning on November 29, 1999. By signing the bond, Roberson acknowledged that he would be tried in his absence if he failed to appear in court. He did not appear in trial. He was tried in abstentia and convicted. Roberson eventually appeared and asked for a new trial, which was denied.

The Court of Appeals reversed, holding that Roberson's failure to appear at trial did not constitute an affirmative waiver of his right to counsel. The Court found it significant that Roberson was never advised of proceeding without representation on the charge.

Property tax amendment will be key issue in November

South Carolina voters will have the chance when they go to the polls Nov. 7 to cap how quickly their homes' tax value grows.

Voters can choose whether to limit the maximum increase in a home's tax value-- known as the assessment-- to 15 percent every five years.

This ballot question will read as follows:

Must Article III and Article X of the Constitution of this State be amended to authorize the General Assembly to establish the method of valuation for real property based on limits to increases in taxable value, adjusted for improvements and losses, of no more than fifteen percent over a five-year period, unless an assessable transfer of interest occurs; to provide that for purposes of calculating the limit on bonded indebtedness of political subdivisions and school districts, the assessed values of all taxable property within a political subdivision or school district shall not be lower than the assessed values for 2006; and to provide that the General Assembly, by general law and not through local legislation pertaining to a single county or other political subdivision, shall provide for the terms, conditions, and procedures to implement the above provisions?

Fourth Circuit decides ownership of Civil War-era papers

In Wilcox v. Stroup, the Fourth Circuit considered the ownership of papers from the administrations of two governors of South Carolina during the Civil War. Thomas Law Willcox sued in United States Bankruptcy Court for a declaratory judgment that the papers were part of his estate. Defendant South Carolina countered that the papers were public property. The bankruptcy court held for the State, but the the district court reversed. The Fourth Circuit affirmed that the papers belong to Wilcox because the long possession of the papers by the Willcox family creates a presumption of ownership in their favor and the State adduced insufficient evidence to defeat this presumption.

Applying South Carolina law, the panel noted that it is well established that, absent evidence of superior title, "[t]he law ever presumes in favor of possession, for possession alone is prima facie evidence of a good title."

SC Supreme Court issues opinion on jurisdiction of Worker's Compensation Commission

In Doctors Hospital of Augusta, L.L.C. v. CompTrust AGC, the considered the following certified question: whether the statutorily created process for resolving fee disputes between a workers' compensation insurer and a medical provider applies to an out of state medical provider who performs medical services outside of South Carolina relating to a workplace injury occurring in South Carolina. The Court answered "no." According to the Court, the Commission does not have jurisdiction over fee disputes relating to fees charged by an out of state medical provider for services performed outside South Carolina relating to an injury occurring in South Carolina

SC Supreme Court holds that disbursement of loan proceeds in residential closing is the practice of law

In Doe Law Firm v. Richardson, the Supreme Court held that the disbursement of funds in the context of a residential real estate loan closing cannot and should not be separated from the process as a whole. Hence, the Court concluded that the disbursement of the funds must be supervised by an attorney. The Court did not specify the form that supervision must take, but simply stated that the attorney's duties includes overseeing this step of the closing process.

Yet another pitfall for real estate attorneys to avoid.

Marriage amendment tops among South Carolina's ballot questions

A constitutional amendment to outlaw gay marriage is on November's ballot in South Carolina.

The state already has a law that bars same-sex marriages, but supporters of the amendment argue a judge could strike the law down and open the door to gay unions in the state.

SCNow.com has this story.

Myrtle Beach Online has this story about proponents and opponents gearing up for the media battle.

The Ballot Question will read as follows:

Must Article XVII of the Constitution of this State be amended by adding Section 15 so as to provide that in this State and its political subdivisions, a marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized; that this State and its political subdivisions shall not create, recognize, or give effect to a legal status, right, or claim created by another jurisdiction respecting any other domestic union, however denominated; that this amendment shall not impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State; and that this amendment shall not prohibit or limit the ability of parties other than the State or its political subdivisions from entering into contracts or other legal instruments?

Fourth Circuit holds abatement decisions are unreviewable

In Hyman v. City of Gastonia the Fourth Circuit issued an interesting opinion on abatement. Hyman appealed the district court's application of North Carolina's doctrine of abatement, which resulted in the dismissal of Hyman's diversity action against the City of Gastonia. Under 28 USC 2105, "[t]here shall be no reversal" of an abatement ruling issued from a lower court. The panel interpreted this language to mean that the statute completely deprives an appellate court of authority to review a district court's abatement ruling.

Examples of abatement, according to the panel, include (1) a defense of prematurity, i.e., that the plaintiff commenced the lawsuit before the underlying cause of action accrued; (2) a defense that the plaintiff's interest in the pending lawsuit has terminated or transferred to another party; (3) a defense that a lawsuit cannot proceed because of the death of either the plaintiff or the defendant; and (4) a defense that there is a separate, identical lawsuit pending.

Hence, a favorable abatement ruling could be a powerful tool for a litigant to use.

S.C. Court of Appeals issues Statue of Elizabeth opinion

In Albertson v. Robinson, the South Carolina Court of Appeals pursuant to the Statute of Elizabeth found that a March 1, 2002 conveyance was void as fraudulent. Husband transferred his interest in the marital home to wife after husband failed to build a swimming pool and after Husband accepted a $11,000 down payment. The conveyance was voidable because it was made without consideration and (1) the Husband was indebted to the creditor at the time of the transfer; (2) the conveyance was voluntary; and (3) the Husband failed to retain sufficient property to pay his indebtedness to the creditor in full.

S.C. Supreme Court issues meaningful offer opinion

In Howell v. USF&G, the state Supreme Court answered a certified question and held that an insurer providing solely voluntary liability coverage for hired and non-owned vehicles is not required to comply with § 38-77-160 and make a meaningful offer of UIM.

Op-ed on our undemocratic Constitution

Sanford Levinson has an op-ed entitled Our Broken Constitution and argues what many consider the greatest American document is in reality a blueprint for undemocratic governance.

Exposing breasts is a form of legitimate political protest

Ok. This is not from SC or the Fourth Circuit, but is worth passing on:

A woman, who was arrested when she exposed her breasts to protest laws that bar women from publicly going bare breasted, can demonstrate topless as part of a legitimate political protest, an appeals court has ruled.

The 7th Judicial Circuit Court of Appeals on Oct. 5 upheld a Volusia County judge's opinion that Elizabeth Book could protest while topless on the city's Main Street Bridge.

Book, of Ormond Beach, was arrested by Daytona Beach police and fined $253 during Bike Week in March 2004. The city said she violated an ordinance banning public nudity that was passed in 2002 to curb indecency at special events.

Chief Justice John Roberts to speak at USC and Charleston Law Schools

From The State:

U.S. Chief Justice John Roberts will speak to University of South Carolina and Charleston School of Law students later this month, the schools announced.

Roberts will preside Oct. 20 over a special law student moot-court session at the University of South Carolina School of Law Auditorium.

Later that day, he will speak to law students and area lawyers at the Gailliard Auditorium in Charleston. Republican U.S. Sen. Lindsey Graham invited Roberts to both schools.

Court of Appeals holds failure to allow cross examination of co-defendants on possible criminal charges was harmless error

In State v. Curry, Curry sought to cross examine his co-defendants who faced the same murder charges as Curry and had not pled guilty or reached a plea agreement. The trial court refused to allow Curry to cross-examine his co-defendants on the possible sentences they faced because Savage and Simuel had not pled guilty or reached a plea agreement with the State. The Court of Appeals held that the trial court erred in barring the cross-examination of Simuel and Savage on the possible sentences they faced. However, the error was held to be harmless because the testimony given by the co-defendants was not the only evidence of Curry's involvement in the shooting.

South Carolina Court of Appeals issues opinion on "family purpose" doctrine

In Evans v. Stewart, Evans brought an action against Blake C. Stewart and Blake's mother, Cusack, seeking damages arising from an automobile accident caused by Stewart's negligence. Cusack was sued because under the family purpose doctrine, the head of a family who owns, furnishes, and maintains a vehicle for the general use and convenience of his family is liable for the negligence of a family member having general authority to operate the vehicle for such a purpose.

The trial court granted Cusack summary judgment, finding that the family purpose doctrine did not apply. The court of appeals affirmed. The Court noted that Stewart's deposition revealed that, while the truck was titled in Cusack's name, Stewart provided the bulk of the funds to purchase the vehicle, he paid for the maintenance of the vehicle, the truck was titled in his mother's name merely because Stewart was a minor at the time of purchase, and Stewart considered the truck to be his.

Judge John Breeden strikes down regulation requiring bars to sell a certain % of food to keep alcoholic beverage license

According to the South Carolina Department of Revenue, nightclubs must get "substantial revenue" from food sales to keep a liquor license. Circuit Court Judge John Breeden ruled last week that the amount of food sales plays no factor in whether a liquor license can be issued. The Department has promised to appeal this ruling.

Former Supreme Court Justice to sit by Designation in 2d Circuit

From Law.com: Former Supreme Court Justice Sandra Day O'Connor will sit by designation in the Second Circuit on a panel hearing five cases this week.

Zoloft Murderer to be transferred to Big House next week

From the AP:

A 17-year-old convicted of murders he said he committed while under the influence of an antidepressant is scheduled to be moved next week from a juvenile facility to an adult prison.

It's a move that attorney Andy Vickery hopes to thwart as he argues the murder appeal of Christopher Pittman on Thursday before the South Carolina Supreme Court.

Fourth Circuit holds that closure of employee cafeteria with withdrawal of employee benefit and arbitrable

In WASHINGTON METRO. AREA TRANSIT v. LOCAL 2, the Fourth Circuit considered whether closure of an employee cafeteria was arbitrable. The dispute arose when the transit authority announced it was going to close the cafeteria at its downtown-District of Columbia headquarters. At the time,the cafeteria had been operating for about 30 years, though it had been closed to the public since the terrorist attacks of September 11, 2001. The Authority justified the closure in terms of its need for the space to be used for other activities of the Authority, and the former cafeteria space is now used for storage and a law library. Based on the agreements between the parties, the panel agreed with the district court and held that this was the withdrawal of an employee benefit and thus subject to arbitration.

S.C. Court of Appeals holds that a party is "prevailing" even if winning on a technicality

EFCO Corporation v. Renaissance on Charleston Harbor involved the question of whether Renaissance was a prevailing party entitled to attorney fees under the mechanic's lien statute when the circuit court granted summary judgment in favor of Renaissance as to a lien primarily because EFCO did not bring a foreclosure action within six months of filing its lien as required by statute. The Court of appeals affirmed that Renaissance was a prevailing party because statutes of limitations are not simply technicalities and thus Renaissance was a prevailing party because it successfully defended the action based on EFCO's failure to comply with a statute of limitations.

South Carolina Supreme Court reverses summary judgment in SCE&G easement case

In Gressete v. SCE&G, landowners granted easements to SCE&G giving SCE&G "the right to construct, operate, and maintain electric transmission lines and all telegraph and telephone lines . . . Necessary or convenient in connection therewith. " Sometime in the 1990s, SCE&G began installing fiber optic communications lines on its existing poles in these easements. Fiber optic lines do not carry electricity but transmit digital signals. After setting up this communications network, SCE&G began conveying excess fiber optic capacity to third-party telecommunications companies without notice or compensation to Landowners.

Landowners filed suit, alleging that the easements granted to SCE&G do not include the right to apportion any part of these easements to third parties for general telecommunications purposes. The trial judge concluded that utility easements "confer a broad right to use the utility easement for additional purposes" and therefore SCE&G's conveyance was authorized as a matter of law. The Supreme Court reversed.

The Supreme Court recognized that the easements do state a conveyance to SCE&G and "its successors and assigns," but that the language limiting the use of the easement to communications necessary to SCE&G's business appears to restrict that assignability. This ambiguity required construction of the written easements themselves by the trial court.

How many issues should you raise on appeal??

Here is some sound advice from Howard Bashman:

When seeking discretionary appellate review in a court of last resort, such as the U.S. Supreme Court or a state's highest court, it's preferable to raise just one or two issues -- and no more than three issues should be raised unless absolutely necessary. Because the odds are squarely against any given case qualifying for discretionary review in a court of last resort, the possibility that a single case might raise three or more separate issues meriting discretionary high court review is highly improbable.

Chief Justice Roberts speaks on judicial independence

Legal Times has this article on the Chief's speech. Here is a taste:

"The judge's commitment to the preservation of our rights often requires the lonely courage of a patriot," Roberts quoted Reagan as saying 25 years ago. "To the extent that attacks on judicial independence come from conservative quarters, I would commend to those quarters the words of the leading conservative voice of our time."

What to expect from the Roberts Court

From Law.com:

Roberts' second term as chief justice begins Monday with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.

The cases will bring crucial and tricky choices for the Court's other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O'Connor on the bench, as well as for Justice Anthony Kennedy, who replaced O'Connor in the less official position of swing voter

Columbia, SC possibly banning smoking in bars

Next time you argue in one of the state's appellate courts, don't plan on stopping for a brew and a smoke on the way out of town. Some Columbia city leaders pushing for smoking ban. According to WIS, some Columbia city leaders are pushing for a ban on smoking in all public buildings, including bars and restaurants. That proposal was the focus of a public hearing City Council held Wednesday.

Matthew J. Perry to be inducted into Hall of Fame

From The State: Judge Matthew J. Perry Jr., the first black federal judge in South Carolina, is among 14 people to be inducted into this year's National Black College Alumni Hall of Fame.

South Carolina Supreme Court holds that 5-27-120 does not create a private right of action

In Vaughn v. Town of Lyman, the Supreme Court held that S.C. Code Ann. 5-27-120, which requires towns to keep sidewalks in good repair, does not create a private cause of action. The basis for this holding is the public duty rule. This rule holds that public officials are generally not liable to individuals for their negligence in discharging public duties as the duty is owed to the public at large rather than anyone individually. However, the Court did hold that there was a common law duty to keep sidewalks in good repair and that Vaughn could bring a common law cause of action. The Tort Claims Act did not protect the town because there was an issue of fact whether the town had notice of the defect and acted within a reasonable amount of time.

South Carolina Supreme Court upholds Physical Therapy Practice Act

In Sloan v. South Carolina Board of PT Examiners, the Supreme Court held that legislation prohibiting physical therapists from working for physician practices and receiving referrals from the physician practice is constitutional. The Plaintiffs argued that there is no rational basis for prohibiting physical therapists from receiving in-house referrals from the physicians who employ them. Self-referral concerns about escalating health care costs, conflicts of interest, and excessive profits apply to all South Carolina health care providers and not just to physical therapists. In the ambit of in-house referrals, all South Carolina health care providers are similarly situated and must be treated the same under state and federal equal protection analysis.

The Supreme Court disagreed, holding that the classification is not all health care providers who receive in-house referrals, but rather just physical therapists. And since the classification treats all PTs the same, the Court upheld it as constitutional. Justice Toal dissented:

The majority concludes that it would be inappropriate to hold that the legislature must treat all health care providers and allied health professionals as similarly situated for purposes of self-referral issues. I disagree. In my view, this is precisely the type of situation in which the legislature should treat all health care providers and allied health professionals as similarly situated. Unlike the majority, I would find that the classification has no reasonable relation to the types of variations and nuances of the medical profession which would necessitate a distinction between physical therapist and all other health care professionals. Although I would agree that the separate classification of physical therapists may be appropriate in other situations, I find it difficult to envision any aspect of physical therapy which is so different from other health care services that it warrants separate classification for self-referral purposes.

I was amicus curiae for a group of patients who wanted the statute struck down. Needless to say, I'm with Justice Toal on this one!

Fourth Circuit issues decision regarding inverse condemnation

In PRESLEY v. CITY OF CHARLOTTESVILLE, a panel of the Fourth Circuit considered the district court's dismissal of a section 1983 action against the City Presley alleged that, without her consent, the Defendants conspired to publish a map that showed a public trail crossing her yard and that the public, using the trail, caused much damage to her property. Presley asserted that the Defendants' actions violated her Fourth Amendment and due process rights. The district court granted the Defendants' motions to dismiss Presley's complaint for failure to state a claim upon which relief could be granted. The panel affirmed that there was no denial of due process, but reversed the district court on the Fourth Amendment claim.

An interesting dispute developed on the panelregardingf the Fourth Amendment claim. Judge Traxler in dissent argued that t Fourth Amendment claim was improper and that the true claim was a takings claim under the Fifth Amendment. The dissent saw the case an one of inverse condemnation and believed that the majority's decision upsets federal inverse condemnation law.

Lindsey Graham cannot serve both in Congress and as a military judge

From The State:

It is unconstitutional for Sen. Lindsey Graham to serve as a member of Congress and a military judge at the same time, the U.S. Court of Appeals for the Armed Forces ruled.

Graham, R-S.C., is a colonel in the U.S. Air Force Standby Reserve, and is assigned as a reserve judge to the Air Force Court of Criminal Appeals.

The decision Wednesday came after Airman 1st Class Charles M. Lane, who was convicted of wrongful use of cocaine during a special court-martial, challenged Graham's qualification to serve on the appellate court, saying it was a conflict of interest.

"We conclude that a member of Congress may not hold the office of appellate judge on a court of Criminal Appeals," the panel said in its decision.

The opinion of the court can be found here.

The Incompatibility Clause of the Constitution provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The issue before the Court was whether the assignment of a Member of Congress to the Air Force Court of Criminal Appeals is proper under the Constitution. The Court concluded that the assignment was inappropriate because of the clear violation of the Incompatibility Clause.

Supreme Court hears arguments on sale of Mental Health property

From the Times and Democrat:

The South Carolina Supreme Court is weighing the questions of whether or not charitable trust law applies to the nearly 200 acres of Department of Mental Health land in downtown Columbia and under what conditions the property may be sold.

The state Supreme Court heard arguments Wednesday, after the Mental Health Commission and the State Budget and Control Board asked the state's top court to clarify whether a trust controls the massive Bull Street campus.Attorney General Henry McMaster said the agency's mission is a public charity and the entire Bull Street property is thus a charitable trust, an argument he also gave in an opinion he issued last December.

"A charitable trust is not an office or an address or a location but it's a relationship and that clearly existed here," McMaster said, adding that promises dating to the 1800s call for the land to be used to care for the mentally ill.McMaster said the state couldn't just sell the land for another use. "Most properties bought by the state can be handled in that fashion but this one was different," McMaster said.

Ron Motley files suit on behalf of camel jockeys

Do you think Ron smells a dollar here? Motley Rice has filed a class-action lawsuit accusing several Arab sheikhs of being involved in enslaving boys to be camel jockeys. The lawsuit claims that young boys are kidnapped or sold by their parents and trained to ride racing camels. They are allegedly treated much worse than the animals and thrown out when they are too old to race.

Lindsay Graham will not stop Jim Haynes from being voted out of Committee

From an interview with Hugh Hewitt:

HH: And will you vote to send William Haynes to the floor?

LG: He hasn't yet, but the truth is, I'll have a hard problem voting for Mr. Haynes. And you know, everybody else, I'm good to go, but I'll have a hard problem voting for him.

HH: Why is that?

LG: Because I believe that he was a responsible party at the Department of Defense at a time to come up with legal infrastructure in the War On Terror that really confused our troops. And I just don't want to make sure we put privates and sergeants in jail and fire the colonels. I think there has to be some accountability at the civilian side in the Department of Defense for creating policies that really have hurt the country. He's a good guy. He's an honest man, but I just have a hard time reconciling that, and he hasn't answered all the questions, yet, so I don't know where he's going to be. But I will not stop him from coming out of committee. If I don't vote for him, you can still send it to the floor.

Fourth Circuit upholds constitutionality of Uniformed Services Former Spouses' Protection Act

In ADKINS v. RUMSFELD the Fourth Circuit considered constitutional challenges to the Uniformed Services Former Spouses' Protection Act, which gives states the option to classify a United States armed forces member's disposable military retirement pay as property divisible upon divorce. In addition, the Act establishes a payments mechanism allowing an eligible former spouse to receive the share of the retired pay directly from the military pursuant to a state court order in divorce proceedings.

Current and retired members of the armed forces whose retirement pay has been divided in state divorce proceedings, sued the Secretary of Defense arguing that the Act and the regulations implementing it violate their constitutional rights to due process and equal protection of law. They also allege that the Act fails to respect the principle, purportedly rooted in the Constitution's Armed Forces and Full Faith and Credit Clauses, that legislation concerning military pay must have nationally uniform effect without variations among the states. The panel upheld the Act and rejected all constitutional challenges of Plaintiffs

William W. Wilkins, chief judge of the 4th U.S. Circuit Court of Appeals, says death penalty is here to stay

From the Richmond Times Dispatch:

"I think the death penalty will be around for a long time," Wilkins said. "But I think you're going to see escalating costs." Those opposing the death penalty argue the money can be better spent elsewhere, he said.

"It costs a lot of money for the federal and the state governments to prosecute somebody for the death penalty," Wilkins said. In Florida, such cases average about $22 million, he said.

Wilkins, a former prosecutor, has been involved in 96 death-penalty cases as an attorney or judge. He is chief judge of the Richmond, Va.-based federal court that hears appeals of federal cases from the Carolinas, Virginia, West Virginia and Maryland.

He said while polls show a majority of Americans favor the death penalty, jurors impose capital punishment in only about 10 percent of death-penalty cases.

Tears Equals Mistrial

This is not from SC, but pretty relevant. In a death penalty case in Florida, the defense got the following instruction from the Judge when the mother of the victim was about to testify:

"If she gets emotional, I will grant a motion for a mistrial," Roberts said, eliciting emphatic headshakes from Dosso's friends and family. "If [the prosecutor] wants to put her on the stand with that in mind, he may do so."

In a compromise, both sides agreed to let the witness give her testimony outside the presence of the jury and then play a video of the testimony for the jury if it was deemed "unemotional" enough.

Fourth Circuit Judge J. Harvie Wilkinson on Gay Marriage and the Courts

This is an interesting op-ed by the former Chief Judge of the Fourth Circuit. Here is a taste:

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

Fourth Circuit affirms provisions of Virginia's Alcoholic Beverage Control Act

In BROOKS v. VASSAR, the Fourth Circuit considered a facial challenge, under the dormant Commerce Clause, to various aspects of Virginia's Alcoholic Beverage Control Act ("ABC Act"). The Court sustained the following statutes:

(1) Virginia Code 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and

(2) Virginia Code 4.1-119(A), which authorizes state owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.

The first statute was upheld because it does not favor in-state producers and thus does not discriminate against out-of-state producers:

Because the Twenty-first Amendment "grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system," and because the dormant Commerce Clause only prevents a State from enacting regulation that favors in-state producers and thus discriminates against interstate commerce, the Personal Import Exception does not violate the Clause.

The second statute was upheld under the market participant exception:

Virginia's choice of selling only Virginia wine is no more inappropriate than would be its choice to sell only Hershey's brand chocolate bars at a State commissary. Like all other in-state wine retailers, the ABC stores can choose which wines they purchase and stock, and Virginia's commitment to purchase only in-state wines is a choice that any wine retailer would be free to make for itself.

Zoloft murder appeal to be argued in SC Supreme Court

From ABC News:

The South Carolina Supreme Court will hear arguments next month in the appeal of the murder conviction for a boy convicted of killing his grandparents in Chester County.

Christopher Pittman's attorneys are appealing the conviction last year in the 2001 slayings. Pittman was 12 at the time of the slaying. His attorneys said he was involuntarily intoxicated by the anti-depressant Zoloft and didn't know right from wrong.

Defense attorney Andy Vickery says there were errors in the trial and that sentencing a juvenile to 30 years in prison amounts to unconstitutional punishment.

A lawsuit filed last week seeks to overturn the state's first municipal ban on indoor smoking

From the Island Packet:

The lawsuit, filed on behalf of Bert's Bar on Sullivan's Island, seeks to prove that smoking bans on the municipal level are prohibited under state law. In the suit, the restaurant argues that the Sullivan's Island ban that went into effect in May runs afoul of the Clean Indoor Air Act of 1990, which prohibits smoking in areas such as schools, government buildings and theaters, and a 1996 provision that says local laws cannot supersede state law.

Fourth Circuit holds that district courts lack authority to remit restitution order imposed under the Mandatory Victim Restitution Act

In UNITED STATES v. ROPER, the Fourth Circuit considered the Government's challenge to a district court's remittance of restitution. The Government asserted that because the district court imposed the restitution orders pursuant to the Mandatory Victim Restitution Act (MVRA), it lacked the authority to remit the restitution orders.

The panel held that the MVRA, in narrow circumstances, does allow for the reduction of an order of restitution where the victim has recovered a portion of the loss in a federal or state civil proceeding. However, this one exception was not present in this case. The Fourth Circuit concluded: "Because the MVRA includes one unique circumstance where district courts may reduce a mandatory order of restitution, we will not read into the statute any additional authority to remit such orders." Hence, the Court remanded with instructions to reinstate the restitution orders.

Fourth Circuit holds that "cocaine base" is not confined to crack

In UNITED STATES v. RAMOS, the Fourth Circuit considered, inter alia, whether the enhanced penalties in 21 U.S.C. 841(b)(1)(A)(iii) apply only to crack cocaine. The Court held that the plain language of the statute imposed no such limitation.

While we believe that Congress contemplated that "cocaine base" would include cocaine in the form commonly referred to as "crack" or "rock" cocaine, Congress neither limited the term to that form in the plain language of the statute nor demonstrated an intent to do so in the statute's legislative history. Congress used the chemical term "cocaine base" without explanation or limitation.

Fourth Circuit affirms denial of Sudan's motion to dismiss in USS Cole case

In RUX v. REPUBLIC OF SUDAN, a suit for damages arising out of the bombing of the USS Cole, the Fourth Circuit reviewed that district court' order denying Sudan's motion to dismiss for lack of subject matter jurisdiction. Sudan argued that the terrorist exception of the Foreign Sovereign Immunities Act was inapplicable in this case. Under the terrorist exception, a court reviews the complaint for allegations of (1) the provision of material support by a state sponsor of terrorism; (2) the provision of such support by an official of the state "while acting within the scope of his or her office, employment, or agency"; and (3) a causal link between the material support and damage resulting from an act of terrorism.

As for the first prong, the Court found that the allegations that Sudan supplied terrorists with "safe houses" constituted material support. The second prong was satisfied because the complaint alleged that the president of the Republic of Sudan authorized the entry into Sudan by Al-Qaeda operatives and gave Al-Qaeda special authority to avoid paying taxes and duties. Finally, the third prong was satisfied because the Complaint alleged facts sufficient to establish a reasonable connection between Sudan's support of Al-Qaeda and the damage to the USS Cole.

Fourth Circuit clarifies circumstances of joint employment under FLSA

In Schultz v. Capital International Security, Inc, the Fourth Circuit Court of Appeals clarified the circumstances under which an employee is jointly employed by two employers pursuant to the Fair Labor Standards Act ("FLSA"). The court also further elucidated the difference between an independent contractor and an employee for purposes of determining a worker's entitlement to overtime. The district court had entered judgment in favor of the defendants, holding that the plaintiffs were not entitled to overtime because they were independent contractors as opposed to employees, but the Fourth Circuit vacated this judgment following a determination that the defendants were joint employers and that the plaintiffs were their employees for purposes of the FLSA.

In analyzing the issue of whether the plaintiffs were independent contractors or employees, the court noted that the issue is not the degree of control that an alleged employer has over the manner in which the work is performed in comparison to that of another employer. Rather, according to the Fourth Circuit, it is the degree of control that the alleged employer has in comparison to the control exerted by the worker. This analysis goes to the heart of the ultimate question--whether the worker, as a matter of economic reality, is dependent on the business the worker serves or, conversely, whether the worker is in business for himself. Once the court determined that the plaintiffs were employees, it easily determined that the defendants were joint employers on the basis that the plaintiffs performed work that simultaneously benefited both of the defendants.

(contributed by Sandi R. Wilson)

Fourth Circuit remands for a decision on the merits regarding challenge to Virginia's open primary law

In MILLER v. BROWN, the Fourth Circuit considered a district court order dismissing a constitutional challenge to Virginia's open primary law for lack of justiciability. The district court held that Virginia's 11th Senatorial District Republican Committee and its chairman, Larry Miller had no standing to challenge the open primary and that any claimexistingg was not ripe. At base, the GOP does not want the Dems participating in the GOP primary.

The Fourth Circuit disagreed that there was no standing. According to the panel:

Focusing on the plaintiffs' injuries reveals that their alleged constitutional injuries are not conjectural or hypothetical. The participation of Democrats in the plaintiffs' upcoming primary is inevitable. Knowing their upcoming process for selecting a nominee will include Democrats prevents the plaintiffs from formulating a message and selecting the candidates best tailored to their party's interests.

The panel also found that the case was ripe: "The only issue in the case is whether Virginia's open primary law violates the plaintiffs' First Amendment rights to freely associate." The Court rejected a contention that the GOP had to wait until at least twocandidatess had filed for office because there would be "insufficient time to decide the case without disrupting the pending election."

Fourth Circuit vacates another sentence at variance with the Guidelines

In United States v. Curry, Curry was convicted in a jury trial for various fraudulent transactions on e-bay. At base, Curry sold gold coins that he did not have. The district court sentenced Curry to twelve-month terms of incarceration on each count, to be served concurrently and followed by twelve months of home detention and three years of supervised release. This sentence was at variance with the Guidelines and the Government appealed.

The district court departed from the Guidelines and imposed a variance sentence because in its view that Curry did not at the outset intend to defraud the buyers. The Fourth Circuit held that this was an improper basis on which to depart because the district court contradicted the weight of evidence and the verdict. The district court also cited Curry's payment of restitution. Again, the panel held that this was insufficient: "we find that Curry's restitution is by itself insufficient to justify the 70 percent variance at issue" because "Curry did not begin making restitution until the jury convicted him of the charges." Hence, the sentence was vacated.

S.C. Supreme Court strikes statute requiring engineering experts to have a SC license

In Baggerly v. CSX Transportation, the Supreme Court reversed a grant of a directed verdict for CSX. In this case, a train engineer was injured when his train derailed after a street sweeper had jumped the curb and collided with the railroad track. Although the sweeper operator was negligent, the court held that there was enough evidence to show that the negligence of the sweeper operator, combined with CSX's negligence regarding insufficient ballast on the roadbed, to bring about the derailment.

Also important in this opinion is the court's decision regarding an out-of-state expert in engineering who was excluded by the trial court under Pursuant to South Carolina Code Section 40-22-30, because the expert was not a South Carolina licensed professional engineer. This Code section provides:

Practice of engineering means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, expert technical testimony....

The Supreme Court held that exclusion of the expert would clearly contravene SCRE 702: "Without clear indication from the Legislature that the 2000 amendment was, in fact, intended specifically to limit Rule 702 in this way, we decline to adopt that interpretation."

Of course, there is not doubt that the legislature intended to prohibit out-of-state engineers from offering expert testimony in our courts. The legislature did the same thing with medical experts, but earlier this week the Supreme Court suspended the legislature's effort at redefining the practice of medicine when there was no actual case or controversyy before it.

Carolina Investors case near final payout

From the Greenville News:

The 12,000 people who lost money when Carolina Investors Inc. failed nearly 3-1/2 years ago likely will get one final payout before the books are closed on a saga that erased an estimated $278 million from a life's work for retirement, small businesses and college funds for grandchildren.

At most, however, they will get another half a penny to add to the 18 cents they have received for each dollar they lost when the Pickens-based company ran out of money and abruptly closed its doors.

S.C. Supreme Court delays enforcement of Act requiring physician experts to have a SC license

The Supreme Court has temporarily delayed judicial enforcement of Act 385 of 2006 insofar as the Act requires a physician to obtain a license to practice medicine in South Carolina before offering expert medical testimony in a South Carolina administrative or court proceeding. According to the Court:

the effect of the revised statutes has the potential to substantially impair the orderly administration of justice. Specifically, Act 385 casts serious doubt on a physician's ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina. This categorical exclusion overlooks the fact that the physician may have treated the patient in the physician's home jurisdiction, and also that the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state. We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope.

Bikini murder carries a death sentence

From CNN: A prosecutor said Tuesday he will seek the death penalty for a Tennessee man charged in the slaying of a Clemson University student who was strangled with a bikini top.

DSS fails to follow law in child welfare cases

From the Times and Democrat:

The state Department of Social Services fails to follow state law in child protection cases, according to a state audit released Wednesday.The Legislative Audit Council report says DSS workers aren't following the law requiring reports and visits in cases involving abuse and neglect. More than half of the sample of cases they reviewed showed caseworkers failed to visit once a month. Auditors also found DSS staffers sometimes did not complete abuse investigations within the required 60-day period.

Meth labs in S.C. 'popping up everywhere'

According to the AP: Methamphetamine is becoming the drug of choice in South Carolina, creating paranoid addicts who turn to crime to support their habits, state and local law enforcement officials say.

Fourth Circuit holds that good faith is relevant to section 841 charges brought against physicians

In UNITED STATES v. HURWITZ, a jury convicted Dr. William E. Hurwitz of multiple counts of drug trafficking for prescribing narcotic pain medicine in violation of federal statutory law. Hurwitz appealed his conviction, inter alia, arguing that the trial court improperly instructed the jury on the law. To convict a doctor for violating section 841, the government must prove: (1) that the defendant distributed or dispensed a controlled substance; (2) that the defendant acted knowingly and intentionally; and (3) that the defendant's actions were not for legitimate medical purposes in the usual course of his professional medical practice or were beyond the bounds of medical practice. Hurwitz argued that the district court erred by rejecting his request for a "good faith" instruction inasmuch as his good faith in issuing the challenged prescriptions was relevant to his intent when treating his patients and thus relevant to the jury's determination of whether he acted outside the bounds of accepted medical practice or without a legitimate medical purpose. The judge did not charge good faith on the trafficking counts because he believed that good faith was legally irrelevant. The panel disagreed with the district court, noting that it is proper to instruct juries that a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients. The panel further held that this good faith determination is objective rather than subjective. The conviction was vacated and remanded for a new trial.

S.C. Supreme Court promulgates rules providing for appeal of agency decisions to appellate court rather than the circuit courts

Until Act No. 387 went into effect July 1, all appeals from agency decisions, including decisions of the administrative law court, have been to the circuit court. Now, appeals from decisions of the administrative law court and certain agencies will be to the Supreme Court or the Court of Appeals as provided by the South Carolina Appellate Court Rules.

In light of Act 387, the Supreme Court has promulgated emergency amendments to the appellate rules.

S.C. Supreme Court holds probation condition of non-association with those having a criminal record does not violate due process

In State v. Allen, Mr. Allen challenged a condition of probation that prohibited him from associating with anyone with a criminal record. Allen argued that this condition violated due process and is generally unenforceable because it is overly broad. Allen asserted the condition would, for example, prohibit someone from associating with a spouse or relative who has a criminal record, or from working at a place which employed anyone with a criminal record.

The Supreme Court rejected these arguments. According to the Court:

In the present case, we reject Appellant's arguments and uphold the validity of the standard condition that Appellant not associate with persons with a criminal record. The condition is not so overly broad as a general rule that it violates due process in all cases; nor does application of the condition under the facts and circumstances of this case violate due process. The condition is reasonably related to the crime for which Appellant was convicted, is intended to prevent future criminal conduct, and should aid in Appellant's rehabilitation.

We further hold, as the trial court and other courts have recognized, that the no-association condition implicitly requires a finding that the probationer knew the person in question had a criminal record during the period of association, and that the association was not simply an unknowing or incidental encounter.

S.C. Supreme Court reverses judgment for SCE&G in electronic easement case

In Gressette v. SCE&G, Landowners sued SCE&G for trespass, unjust enrichment, an injunction, and declaratory judgment. Landowners claimed SCE&G's conveyance of excess capacity on its fiber optic cables was an improper use of the electric easements granted by Landowners to SCE&G. The trial judge granted SCE&G's motion to dismiss under Rule 12(b)(6).

The Supreme Court reversed the grant of the motion to dismiss. The issue, according to the Court, was whether SCE&G may apportion its allowed use to third parties. Because this issue could not be resolved without construing the instruments granting the easements in question, the Court held the granting of the motion to dismiss was improper.

S.C. Supreme Court hints that failure to keep proper records on breathalyzer could result in suppression of test results

In State v. Landon, the Supreme Court held that the failure to disclose repair and maintenance records for breathalyzer equipment pursuant to a Rule 5 request does not warrant suppression of breath test results absent a showing that such records are material to the defense. The Court did note that information regarding the DataMaster is exclusively within the State's control, and that SLED's failure to provide a detailed record significantly hampers the defendant's ability to show prejudice. Hence, the Court held that once a defendant makes a prima facie showing of prejudice, the burden must shift to the State to prove the defendant was not prejudiced, either by providing records to show the machine was working properly at the time of testing or by some other contemporaneous evidence.

Fourth Circuit holds that ADHD is not enough to overcome an appeal waiver

In UNITED STATES v. COHEN, Cohen pled guilty to mail fraud. After sentencing, Cohen sought to appeal, arguing that the district court erred in determining the amount of loss for sentencing purposes and in calculating the amount of restitution owed to his victims. The United States moved to dismiss the appeal based on an appeal waiver contained in Cohen's plea agreement. The plea agreement provided that he

waive[ed] knowingly and expressly all rights, conferred by 18 U.S.C. 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the [applicable and advisory] Guideline range, reserving only the right to appeal from an upward departure from the Guideline range that is established at sentencing. . . .

Cohen argued that the panel should find his appeal waiver to be invalid and unenforceable because of his ability to knowingly and intelligently waive his right to appeal was compromised by his Attention Deficit Hyperactivity Disorder. The panel rejected this argument because the district court undertook a careful inquiry to determine that Cohen was competent and understood what he was doing by entering into the plea agreement and pleading guilty; the district court asked specific questions about Cohen's ADHD condition; Cohen was represented by counsel during the proceedings, who assured the district court that the various doctors who evaluated Cohen all found him competent to understand the nature of the court proceedings; and Cohen's attorney further stated that he had no difficulty communicating with Cohen and had no reason to doubt Cohen's competency.

Hence, the panel dismissed the appeal.

Ct. of Appeals issues opinion on malice in a malicious prosecution case

In Guider v. Churpeyes, Inc., Guider was an employee of Church's Chicken and stole $800 from the Company before she quit. She came clean, and eventually returned the money to Church's by depositing the funds in the company's bank account on June 13, 2003. She had retained possession of the funds for eight days, during which time Church's did not have access to the funds. A municipal court judge signed the arrest warrant on June 19, 2003. Police served Guider with the warrant on June 29, and arrested her on the charges. The charges were dismissed the following day when Church's failed to appear at Guider's hearing. Guider sued for abuse of process and malicious prosecution. The trial court denied Church's motions for directed verdict, and Church's appealed.

The Court of Appeals reversed, holding that there was no malice in the prosecution of Guider. According to the Court: "A reasonable party could only conclude Church's had probable cause to believe Guider guilty of breach of trust. We find Guider failed to meet her burden of proving Church's lacked probable cause to bring breach of trust charges against her. "

S.C. Court of Appeals issues opinion on actual malice standard

In Metts v. Mims, the state Court of Appeals decided a defamation case and issued guidance on what is actual malice. The case concerned a newspaper article regarding county officials using county work crews to perform work at the officials' residences. Metts's claim of actual malice in this case hingedon the reporter's failure to investigate allegations that Mett's used the work crews at his house even though the reporter received a list of offending officials that did not contain Metts' name. The Court of appeals found no actual malice:

Newspaper is a small weekly publication, and the evidence reveals the reporter received the list a few hours before the deadline for submitting final articles. We agree with the circuit court that the evidence indicates the reporter failed to investigate due to time constraints and a number of other obligations, including numerous editorial and administrative tasks. Although the reporter's actions may have been negligent, we cannot say that they constituted an extreme departure from the standards of investigation normally employed by publishers so as to rise to the level of constitutional actual malice.

Hence, the grant of summary judgment to the newspaper was affirmed.

S.C. Supreme Court reverses PCR judge's grant of new trial

In Watson v. State, the PCR judge granted Watson a new trial because trial counsel failed to object to hearsay testimony concerning Watson's alleged sexual abuse of the victim. At the PCR hearing, trial counsel testified that she did not object to the hearsay testimony because she wanted to avoid the possibility that the prosecution would have shown the video of the victim talking about the sexual abuse. Counsel stated that, "I used my own judgment. Had I objected, then they could have shown the video and shown the child again. And I did not think that was wise, to keep showing that. . . the child telling about the abuse over and over, and over, and the jury seeing the child telling that over and over and over." The Supreme Court held that this was a valid reason to fail to object and reversed the grant of a new trial.

S.C. Supreme Court reverses conviction for failure to show actual dominion over drugs seized

In State v. Heath, the Supreme Court held that the State failed to present evidence that Heath was in constructive possession of the cocaine found outside his mother's house and thus should not have been convicted of trafficking. The police discovered crack in a car-washing mitt in a recycling bin outside near the back door of the house. The State presented no direct or circumstantial evidence linking Heath to the 43.48 grams of crack. Heath lived in the home where the crack was found, but the home was owned by his mother. As a result, the Court held, it was arguable that Heath merely had a right to access the area where the crack was found, not actual dominion and control of the property.

S.C. Supreme Court finds duty of care when person agrees to provide services to a mentally disabled client

Babcock Center is a private, non-profit corporation based in Columbia that provides housing and other services for people with mental disabilities. "Madison" was a mentally retarded female resident of the Center. Madison left the Center one night, got in a car with former Center residents, had sex with the former residents and contracted sexually transmitted diseases. In Madison ex rel Bryant v, Babcock Center, Madison and her guardian sued the Center, alleging various causes of action. The circuit court granted summary judgment to Babcock Center on the ground it owes no legal duty of care--apparently the trial court believed there was either no duty or a 24-hour duty of constant watch. The Supreme Court reversed, holding that a private person or business entity which accepts the responsibility of providing care, treatment, or services to a mentally retarded or disabled client has a duty to exercise reasonable care in supervising the client and providing appropriate care and treatment to the client.

The trial court also held that the South Carolina Department of Disabilities and Special Needs, which contracted with the Center, owed no duty to Madison. The Supreme Court disagreed, citing the same common law standard as the Babcock Center.

Center for Capital Litigation closes its doors

According to this article from The Greenville News, the Center for Capital Litigation, a nonprofit lawyers group that represented death row inmates in appeals for decades in South Carolina, has closed its doors because of a lack of money.

Joseph Savitz, chief attorney for the South Carolina Office of Appellate Defense, said there is "nobody left" to replace the center. "The fact that they are no longer here increases the chances of an execution that shouldn't occur," he said. "It's a sad thing that there's no money available, especially given the recent disclosures of innocent men sitting on death row and the wrong people being executed."

S.C. Supreme Court challenge to law making it a crime to disturb schools

According to The State:

The S.C. Supreme Court will hear a Greenwood County case next month that challenges state law making it a crime to disturb schools. Lawyers for a boy convicted of disturbing his school will argue that the law is overly broad.

In South Carolina in fiscal 2004-05, there were 2,801 disturbing-school cases referred to solicitors. It was the top juvenile offense for that year, state Department of Juvenile Justice records show.

Fourth Circuit issues Title II and Section 1981 Opinion

In DENNY v. ELIZABETH ARDEN SALONS, the Fourth Circuit dealt with the District Court's grant of summary judgment in favor of Elizabeth Arden Salons on Title II and Section 1981 claims. At base, the Salon refused to style Denny's hair because they "didn't do black people's hair."

Title II entitles individuals "to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin." The following are listed as places of public accommodation: (1) hotels, (2) restaurants and(3) "place[s] of exhibition or entertainment." The Fourth Circuit held that a hair salon does not fall within the statute and thus no Title II claim could be brought.

Plaintiff also brought a section 1981 claims which provides that all citizens have the right to make contracts the same as white citizens. On this claim, the Fourth Circuit reversed the district court's grant of summary judgment. According to the Court:

In fact, it is hard to imagine plainer evidence of purposeful discrimination than when services are denied expressly because the purchaser is African American. When Seandria Denny arrived to pay for her mother' s hair coloring, the receptionist explained that the salon did not "do black people' s hair." Denny also alleges that Chelsey Orth, the salon's manager, confirmed this view from management's perspective. Orth further explained that each and every one of the eight or nine hair stylists present refused to work on Jean Denny's hair. While there may be a more benign explanation for the salon's refusal to fully serve plaintiffs, the receptionist's overt racial explanation creates a triable dispute.

Fourth Circuit decides duty to defend case

In COWAN SYSTEMS v. HARLEYSVILLE MUTUAL INSURANCE, the Fourth Circuit held that Harleysville Mutual Insurance Company had a contractual duty to provide Cowan Systems, Inc. with a defense in an action commenced against Cowan by Linens N Things, Inc., who, facing a claim for premises liability, sought indemnity from Cowan based on an indemnification provision in a commercial contract between them. At base, a driver for Cowan was injured while he was delivering an empty Linens N Things trailer to a mud lot leased by Linens N Things. He fell on the ice and then filed a personal injury action against Linens N Things alleging that Linens N Things had negligently failed to remove ice and snow from the mud lot. Linens N Things filed a third-party complaint against Cowan to have Cowan indemnify Linens N Things for its premises liability. When Cowan presented the suit papers to its insurer, Harleysville, Harleysville denied coverage, claiming that it had no duty to defend.

Harleysville conceded that the CGL policy provided Cowan coverage for certain tort liability that Cowan assumed by contract. But, it argued that the contractual coverage did not insure Cowan's indemnification of liability to an employee of Cowan because the driver was not a "third person or organization" whose claim was covered by the contractual coverage provision. The Fourth Circuit found that employment status did not change the fact the driver was not a party to the Truckload Transportation Agreement and therefore was also a "third person" with respect to the contractual indemnification in that agreement. Accordingly, coverage existed.

S.C. Court of Appeals issues standing opinion in CON case

In Commander Health Care Facilities, Inc v. DHEC, Commander filed a declaratory judgment action seeking to overturn DHEC's approval of additional new Medicaid beds for Heritage Home. Commander also sought a declaration that DHEC’s grant of permission to Heritage Home to build new Medicaid beds under Proviso 9.35, which gave DHEC permission to grant requests for new beds without obtaining a CON.

The Court of Appeals upheld the circuit court's decision that no standing existed. Commander suffered no injury because it failed to put forth any evidence that it applied for and was denied Medicaid beds contemporaneous with or since Heritage Home was awarded beds under the Proviso and it did not assert that it had any particular plans to apply for beds in the future. Without an injury, there is no standing.

S.C. Supreme Court overturns murder conviction because of prosecution's Golden Rule argument

In State V. Reese, Willie Reese was tried and convicted of murdering Teresa Reese. In closing argument, the solicitor asked the jury "Who speaks for Teresa Reese?" He than told the jurors that they did. The defense lodged a timely objection and made a motion for a mistrial. The Supreme Court agreed that this was improper "Golden Rule" argument:"The solicitor argument indisputably asked jurors to abandon their impartiality and view the evidence from terraces viewpoint." Hence, a new trial was granted.

Remember: Key to this case was a timely objection. Had there been no objection, the argument would be been waived and no new trial would have been granted.

BMW enters into consent order regarding unpaid wages

The U.S. Department of Labor announced last week that a complaint and consent judgment with BMW has been reached for unpaid overtime at its South Carolina plant.

The judgment calls for payment of $629,869 in overtime back wages to 1,224 workers in Spartanburg, S.C. The suit was based on an investigation by the department's Wage and Hour Division into violations of the Fair Labor Standards Act.

According to the department, the company failed to pay automobile body and paint shop workers for time spent putting on (donning) and taking off (doffing) required safety gear and for time spent walking to and from work stations, which resulted in unpaid overtime. The period covered in this judgment is between April 2003 and March 2006.

Senate returns Fourth Circuit nominations of Boyle and Haynes to President Bush

Confirm Them has the details.

Fourth Circuit vacates sentence because of improper departure for a single criminal occurrence

In UNITED STATES v. HILLYER, Hillyer pled guilty to two federal environmental crimes involving illegal dredging in North Carolina's Croatan Sound and received three years probation. The Fourth Circuit vacated a sentence as unreasonable. A defendant may be eligible for a 5K2.20 departure if he "committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life."

The Court noted that while Hillyer's conduct might have had a single motivation, it was not a single occurrence or transaction. Rather, it constituted multiple criminal acts, with each occurrence of prop dredging representing a violation of the permit and applicable federal laws.

Moreover, Hillyer's conduct was not a single criminal occurrence because there was significantt planning of the criminal act and the criminal act occurred over a one week period. Hence, the sentence was vacated.

Reggie Lloyd to seek the death penalty in Comfort Inn fire case

According to this from The State: The U.S. Justice Department, in a rare move, is seeking the death penalty in a 2004 Greenville motel arson that claimed six lives, including a toddler's, and hurt 11 adults. The Comfort Inn & Suites that burned Jan. 25, 2004 lacked sprinklers, prompting a legislative push to mandate them in all S.C. motels and hotels.

S.C. Court of Appeals holds prisoners have no liberty interest in prison employment

In Skipper v. SCDC, the prisoner brought suit alleging he was denied both a liberty interest in prison employment and due process with regard to SCDC's drug-testing policy when SCDC terminated him from his prison job for testing positive for drugs. The circuit court agreed that there was a liberty interest, but the South Carolina Court of Appeals disagreed, holding that the prisoner had no liberty interest in prison employment which potentially afforded him a basis for a claim under 42 U.S.C. 1983.

Doctrine of in pari delicto can apply to receivers of corporations

In Myatt v. RHBT Financial Corporation, the court of appeals issued a decision involving the doctrine of in pari delicto, which is the principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing. In a matter of first impression in South Carolina, the court held that a receiver of a corporation used to perpetuate fraud may not seek recovery against an alleged third-party co-conspirator in the fraud.

S.C. Court of Appeals awards new trial because of multiple Miranda violations

In State v. Navy, Navy appealed his conviction for homicide by child abuse, arguing the trial court erred in admitting three inculpatory statements. The State Court of Appeals found violations of Miranda where officers approached Navy and refused to delay the questioning until after the child's funeral. The court described these actions as a mandate to accompany the officers. Also important to the Court was the fact that Navy was transported to the Sheriff's Department in the backseat of a patrol car, rendering him unable to return home on his own. Once at the jail, Navy was not allowed to walk about the Sheriff's Department freely, and he was accompanied for smoke breaks. Hence, Navy was in custody and should have been given his Miranda warnings.

As for later written statements, the court also found improper police tactics. The police questioned Navy until he gave them inculpatory statements and then read him his Miranda rights. According to the Court, the mid-interrogation Miranda warning given to Navy was not effective in advising him of his rights or the consequences of abandoning them.

The Court granted Navy a new trial.

S.C Highway Patrol takes to the air.... again

From the Times and Democrat:

The long arm of the law is even longer now that aerial traffic enforcement has been resumed in South Carolina. The South Carolina Highway Patrol issued 23 citations in its first two hours of aerial enforcement patrols of a five-mile stretch of Interstate 26 in Orangeburg and Calhoun counties.

SCHP Troop Seven initiated the aerial enforcement patrols from 11 a.m. to 1 p.m. on July 19 on the westbound side of Interstate 26 from the 154 mile marker to the 159 mile marker.

The patrols over this stretch of highway resulted in 18 speeding violations, four seat belt violations and one driver's license violation.

As a defendant, you know you are in trouble when the facts section of an opinion reads like this:

From an the opinion affirming the death penalty in the case of United States v. Fulks:

On June 11, 2002, Fulks and Evans were married. Fulks supported his new family in the same way he had supported himself for years -- by breaking into cars and stealing. And as he had with other women, Fulks often became violent with Evans, sometimes beating her severely and assaulting her sexually.

It is a long opinion, but you don't have to read any further than this to know the result.

Treble damages under Payment of Wages Act is discretionary according to S.C. Court of Appeals

The South Carolina Payment of Wages Act, in pertinent part, provides that "In case of any failure to pay wages due to an employee as required by Section 41-10-40 or 41-10-50 the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney’s fees as the court may allow. " In Temple v. Tec-Fab, the trial judge ruled that this provision requires a judge to treble damages when the employer violates the Act. The Court of Appeals disagreed.

The Court of Appeals held the decision to treble damages is within the trial court's discretion and imposition of treble damages in those cases where there is a bona fide dispute would be unjust and harsh.

Registered Agent is not a "statutory agent" according to S.C. Supreme Court

In Harbor Island Owners' Association v. Preferred Island Properties, Inc., the South Carolina Supreme Court considered, among other things, whether a registered agent is a statutory agent under the South Carolina Rules of Civil Procedure. Rule 6(e) provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or upon a person designated by statute to accept service, five days shall be added to the prescribed period

This was significant because Preferred Island argued that a default judgment entered against it was a nullity because the affidavit of default was filed 34 days after service on its registered agent, making it invalid because Preferred Island still had one more day to answer under Rule 6(e).

The Supreme Court disagreed, holding that a "registered agent" is not a "person designated by statute to accept service" and that Rule 6(e) therefore did not apply.

S.C. Supreme Court issues opinion on proper service of process when the defendant refuses to answer the door

In BB&T v. Taylor, the Supreme Court considered what constitutes delivery of a copy of the summons and complaint to the individual personally where the process server has repeatedly attempted to serve process and during the attempt at issue believed an individual was inside the residence but never saw or communicated with the individual.

In Taylor, the process server stated in an affidavit that he posted the documents on the front door "after person(s) inside refused to answer door." In a subsequent affidavit, the process server stated he posted the documents on the front door after determining a person was present inside the residence, knocking and calling out to the alleged occupant, determining the alleged occupant would not communicate with him, confirming one of the vehicles at the residence belonged to Taylor, and calling out his intent to leave the papers.

According to the court, the service of process was insufficient:

Jones merely speculated that an individual of suitable age and discretion was inside Petitioner's residence and was refusing to communicate with him during his attempts to serve process. Also, Petitioner did not refuse to accept a copy of the summons and complaint, unlike the defendant in Patel. Rather, there are no facts in the record to indicate Petitioner was even aware of the process server and his attempts to serve her. Petitioner was not properly served under these facts because Jones never saw or spoke to anyone who resided in Petitioner's residence nor did anyone refuse acceptance before Jones attached the summons and complaint to Petitioner's front door.

S.C. Supreme Court clarifies error preservation under Rule 59(e)

In Prye v. Fox, the South Carolina Supreme Court offered further guidance on Rule 59(e) error preservation. In Prye, the Pryes raised the issue whether Attorney Hill acted outside the scope of his professional responsibilities by allegedly soliciting Fox to join in litigation against the Pyes and by filing the suit without Fox's knowledge. The Pyes asserted this theory both at the summary judgment hearing and the Rule 59(e) hearing. The trial judge, however, did not rule on the theory. The Supreme Court agreed with the Pryes that this issue was preserved.

Generally, an issue must be raised to and ruled upon by the circuit court to be preserved. However, an exception to this rule exists where an issue is raised but not ruled upon at a Rule 59(e) hearing. Because a lawyer cannot force a judge to rule on an issue, raising the matter in the Rule 59(e) motion is sufficient.

S.C. Supreme Court changes pro hac admission rules

Under the revised rules, if a lawyer files more than six applications for admission pro hac vice in a calendar year, including applications for purposes of Rule 404(h), he is considered regularly engaged in the practice of law in South Carolina. By regularly practicing in SC, he is not eligible for further pro hac admission.

The Case for Jim Haynes on the Fourth Circuit

Powerline Blog makes this case for Jim Haynes to sit on the Fourth Circuit.

Clarendon County Sheriff's Dept and NAACP discuss recent hate crimes

Police and NAACP leaders sat down to discuss the recent attacks in Clarendon County where victims were targeted because they were black and poor. The suspects indicated that due to the victims' race, law enforcement would say the crimes simply didn't matter.

The suspects are facing a possible sentence of 100 years in prison.

A news article on the meeting with the NAACP and the hate crime issue can be found here.

Tough anti-smoking law to go into effect in August

Beginning Aug. 21, minors under age 18 caught with cigarettes or other tobacco products can be fined $25, required to complete an approved anti-smoking program or ordered to perform five hours of community service. Minors who don't follow court orders can have driving privileges restricted for 90 days.

A story on the pros and cons of the new law can be found here.

Calls for South Carolina to Enact Hate Crimes Statute

A recent attacks on two black women have led to calls for a South Carolina hate crimes statute. Two white men in Clarendon County sexually assaulted a black teen, stabbed her and left her for dead in a bathtub. Dustin L. Evans, 21, and Jeremy Shay Sweat, 24, have been charged with kidnapping, first-degree criminal sexual conduct and assault and battery with intent to kill in the attack on the 15-year-old girl. The two also have been charged with sexually assaulting and kidnapping a 45-year-old black woman from Summerton last month. Investigators say the women appear to have been targeted because of their race.

A news story on the attacks and hate crimes issues can be found here.

Senator Lindsey Graham at odds with Dubya on detainees and military tribunals

The International Herald Tribune has this story. Here is a taste:

Graham's position, which advocates using the existing military court-martial system as the basis for trying suspects, has drawn fire from many Republicans, who say it could cripple the government's ability to protect the nation by giving detainees too many rights and making it harder to use highly classified intelligence against them.

But drawing on his own experience and a deep personal loyalty to the military justice system, Graham is working across party lines to try to assemble a consensus behind his approach, saying it is sound on the levels of both law and national security.

Fourth Circuit Nominee Scrambles to Save Nomination

According to news accounts, Jim Haynes has backed off the torture opinions but it is unlikely that the nomination can be saved at this point. At this rate, the Fourth Circuit will probably not get another judge this year.

Black Lung Benefits - Statute of Limitations

In Consolidated Coal Co. v. Williams, the Fourth Circuit held that a medical opinion that was later deemed to be a misdiagnosis of pneumoconiosis by virtue of a denial of benefits cannot trigger the statute of limitations for a second claim for benefits. In other words, if a doctor diagnoses a miner with black lung and then the Benefits Review Board of the Dept. of Labor denies that miner's claim for black lung benefits, the statute of limitations for a second claim has not begun based on that doctor's determination since the initial diagnosis is characterized as a misdiagnosis.

Section 932 of Title 30 provides that any claim for black lung benefits "shall be filed within three years after whichever of the following occurs later - (1) a medical determination of total disability due to pneumoconiosis; or (2) March 1, 1978." The miner in this case received a positive medical diagnosis in 1995 and subsequently filed his first claim for benefits. The Board denied his request for benefits and then he filed a second claim in 2001 - six years after his initial diagnosis. According to case law, the Board's first denial of benefits must be accepted as final and correct. The first diagnosis in 1995 must be treated by the courts as a misdiagnosis in light of the denial of the miner's first claim. Therefore, the misdiagnosis had no effect on the statute of limitations in his second claim. His second claim was timely.

(Contributed by Kristina Cooper)

Section 1983 Claim Fails due to Qualified Immunity

In Carr v. Deeds, the Fourth Circuit upheld the District Court's grant to summary judgment for the defendants on the plaintiff's claims brought under section 1983. Plaintiff's section 1983 claims alleged that Trooper Deeds unconstitutionally employed excessive force against the decedent, and that Trooper Deeds and Trooper Bradley unconstitutionally employed deadly force during an attempted arrest of the decedent on July 10, 2001.

The court based its decision on qualified immunity, stating that police officers "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The court said that excessive force is examined under an "objective reasonableness standard," and under the circumstances, a reasonable officer could have believed that the decedent posed a significant threat to serious physical harm to them, their fellow officers, and any others who might encounter him during his flight.

(Contributed by Catherine Runion)

Sentencing Guidelines - Post-Booker

In United States v. Sullivan, the Fourt Circuit vacated the sentences of two individuals convicted of numerous charges related to a drug conspiracy in Beaufort, South Carolina. Both individuals appealed their convictions. While their appeals were pending, the Supreme Court decided United States v. Booker, which held that the US Sentencing Guidelines were advisory rather than mandatory and that any fact necessary to support a sentence exceeding the maximum authorized by the facts in the case must be established by a jury verdict or a guilty plea.

During the sentencing phase of Sullivan and Campbell, the district court conducted its own fact-finding and discovered that both individuals had been involved in the murders of two rival drug dealers. With that new information, the court enhanced the criminal sentences to life imprisonment. In light of Booker, the Fourth Circuit held that the sentences must be vacated and remanded for resentencing because the sentences depended on the murder references which were not supported by a prior conviction, a guilty plea, or a jury verdict.

(Contributed by Kristina Cooper)

Limitations Period for Execution of Judgment Not Tolled

In Home Port Rentals, Inc. v. Roger Moore, the South Carolina Supreme Court held that South Carolina's ten-year limitations period for execution is not tolled for time during which a judgment debtor is out of state.

In an action for declaratory judgment that occurred eleven years after the initial judgment was entered, the circuit court granted, and the Court of Appeals affirmed, summary judgment in favor of the judgment debtor because the judgment was more than ten years old. The Supreme Court granted a writ of certiorari, and affirmed the Court of Appeals' opinion, stating that the Court has consistently held that a judgment becomes stale and a judgment lien is extinguished after ten years. The Court noted that the right to execute on a judgment does not constitute a cause of action. In other words, execution is not initiated by bringing an action, such as the Petitioner's declaratory judgment action.

(Contributed by Catherine Runion)

Disclaiming the Implied Warranty of Habitability

In Kirkman v. Parex, the South Carolina Supreme Court reversed a Court of Appeals decision, which upheld a grant of summary judgment, because there remains a genuine issue of material fact concerning the lender's extent of involvement in the construction of a house. Perhaps more importantly, the Court held that the implied warranty of habitability can be disclaimed.

First Union financed a construction company's building of a house and subsequently foreclosed on the property when the construction company went out of business in mid-construction. In order to complete the house, First Union hired a contractor and then sold the completed property to the homeowners. In the deed conveying the property to the homeowners, First Union disclaimed the implied warranty of habitability and sold the property as-is. The homeowners asserted they were unaware of the disclaimer.

When the homeowners attempted to sell the property years later, they spent $45,000 to repair the artificial stucco (installed by the original construction company) and brought an action against First Union alleging it, as seller of the property, breached the implied warranty of habitability. The circuit court granted summary judgment to First Union, finding First Union was a "mere lender" and therefore had not impliedly warranted the habitability of the house. The Court of Appeals affirmed, relying on the "mere lender" theory in Kennedy v. Columbia Lumber and Mfg. Co. (a "mere lender" is not ordinarily liable under an implied warranty of habitability).

The S. C. Supreme Court reversed the decision and remanded for further findings. The Court found that the Court of Appeals improperly relied on Roundtree Villas, where it was held that a lender could be liable in tort, not contract, for faulty construction on the parts of the house on which the lender worked. However, in Roundtree Villas, the discussion of a lender's warranty liability was brief since none of the defendants in that case actually sold the house.

The S.C. Supreme Court also addressed the novel issue of whether the warranty of habitability can be disclaimed. The Court agreed with the Supreme Court of Alabama that principles of contract law allow a party to disclaim the implied warranty of habitability. However, the disclaimer is only permitted if it is "(1) conspicuous, (2) known to the buyer, and (3) specifically bargained for." The standard is meant to protect buyers and will be applied strictly.

(contributed by Kristina Cooper)

FDA Power Over Authorized Generics

In Mylan Pharmaceuticals, Inc. v. USFDA, the Fourth Circuit affirmed the district court's dismissal of Mylan Pharmaceuticals' petition to the FDA. Mylan's petition requested a ruling that under a provision of the Federal Food, Drug, and Cosmetic Act (FFDCA) an authorized generic drug could not be sold until Mylan's generic drug had been on the market for 180 days. The court concluded that the FFDCA does not grant the FDA the power to prohibit the marketing of generic drugs authorized by the pioneer drug maker during the 180-day exclusivity period afforded to a drug company in Mylan's position.

Mylan was the first applicant to file a paragraph IV Abbreviated New Drug Application (ANDA), presenting a drug that was the biological equivalent to Proctor & Gamble Pharmaceuticals' pioneer drug, Macrobid. Mylan's application was approved, and they were given the statutory 180-day exclusivity period created in the FFDCA, which allows the ANDA recipient to sell its drug without other generic competition for 180 days. Subsequent to Mylan's ANDA approval, Proctor & Gamble granted a third party a license to sell a generic version of the pioneer drug, Macrobid. This strategy appeals to the pioneer drug maker because the drug maker benefits from the sales of the authorized generic and authorizing the third party generic staves off possible competition from the ANDA applicant.

The authorized generic sales proved detrimental to Mylan's sales of their generic drug. The question before the Fourth Circuit in this case was whether the FFDCA empowers the FDA to prohibit sale of authorized generics during the 180-day exclusivity period. The court held that although the introduction of an authorized generic may reduce the benefit of the 180-day exclusivity period awarded to the first ANDA applicant, the FFDCA gives no legal basis for the FDA to prohibit the encroachment of authorized generics on that exclusivity.

(contributed by Catherine Runion)

Texas Redistricting

SCOTUS has declared most of Texas' redistricting plan constitutional. The court ruled broadly that the Constitution does not prohibit redrawing district lines when it advantages one party over another. However, writing for the majority, Justice Kennedy threw out a portion of the map that violates the Voting Rights Act of 1965 because of its effect on Latino voters. To read the full text of the 132 page opinion, see link below.

League of United Latin American Citizens v. Perry .

(Contributed by Catherine Runion & Kristina Cooper)