Appellate Law

Ninth Circuit's chief judge posted porn on his personal website

Posted on June 11, 2008
Only in the 9th Circuit. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, posted porn on his personal website, which could be viewed by members of the public. Oops.The images included naked women on all fours painted to look like cows and a video of a dude arousing farm animals...

Request to serve coffee is not sexual harassment

Posted on June 11, 2008
It seems pretty out there that a plaintiff's attorney would actually bring a Title VII case around a receptionist serving coffee to supervisors. The plaintiff testified that she acquiesced once or twice, but that she found the request demeaning and embarrassing and believed that they "reinforced outdated gender stereotypes...

Walt Wilkins clears the Senate

Posted on June 05, 2008
Congrats to Walt Wilkins on his confirmation as the US Attorney for the District of South Carolina!WSPA has this story.Walt has prosecuted several notable cases, including a $20 million mortgage fraud and an international human trafficking and prostitution ring...

Capital defense lawyer's suit againt former Chief Judge Wilkins is resolved by Fourth Circuit

Posted on June 02, 2008
In 2006, a Virginia capital defense lawyer filed suit after the 4th U.S. Circuit Court of Appeals, with no explanation, cut in his bill from $38,000 to $10,000 for work on a death penalty appeal to the circuit, the Supreme Court and a clemency petition...

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SCOTUS holds that counsel has full authority to consent to a magistrate judge supervising jury selection

Posted on May 29, 2008
In Gonzalez v. United States, SCOTUS dealt with the decisionmaking authority of counsel in jury selection. The question presented was whether it suffices for counsel alone to consent to the magistrate judge?s role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent...

SCOTUS holds that section 1981 creates a private right of action for retaliation claims

Posted on May 28, 2008
Yesterday, the United States Supreme Court decided CBOCS West Inc. vs. Humphries which dealt with whether a 150 year old statutory provision encompasses a complaint of retaliation. At issue was 42 U.S.C.A. section 1981(a) which provides that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ? as is enjoyed by white citizens...

Clemson trustees ask for qualified immunity

Posted on May 27, 2008
Summary judgment hearings have been scheduled in the Troutman suit for June. Troutman, who was assistant to Clemson's president, alleges he lost his job, in part, after he spoke out about "excessive" salary increases given to some university administrators...

Two new Court of Appeals Judges elected

Posted on May 23, 2008
Judge John D. Geathers and Judge James E. Lockemy have been elected by the General Assembly to serve on the Court of Appeals.

Walt Wilkins approved by Senate Judiciary Committee

Posted on May 22, 2008
Assistant U.S. Attorney Walt Wilkins was unanimously approved Thursday by the Senate Judiciary Committee. Walt will hopefully soon receive a vote by the full Senate and be confirmed as the United States Attorney for the District of South Carolina.

Fourth Circuit strikes down Virginia late-term abortion restriction

Posted on May 22, 2008
At base, the panel held that the law does not protect doctors who intend to perform legal, standard second-trimester abortions that accidentally become the type barred by the law. Doctors might, through fear of criminal liability, stop performing standard abortions...

Steven Agee confirmed to serve on the United States Court of Appeals for the Fourth Circuit

Posted on May 20, 2008
Here is a statement from the President.Agee was nominated by President Bush in March after being recommended as a candidate for the post by both of Virginia?s senators, Republican John Warner and Democrat Jim Webb. Warner and Webb made brief floor speeches in support of Agee before the Senate's vote...

SCOTUS approves Congress' efforts to criminalize offers or requests for child porn

Posted on May 20, 2008
Yesterday, the United States Supreme Court decided the case of United States v. Williams. This was a facial First Amendment challenge to the "PROTECT Act." This Act was a 2003 Congressional Statute aimed at child-pornography on the internet. The Act was passed in light of earlier Supreme Court holdings that limited child-pornography prohibition to material that could be proved to feature actual children rather than youthful-looking adult actors or virtual images of children generated by a computer...

Preserving error at trial: Counsel's reference to character evidence not enough for Court of Appeals

Posted on May 19, 2008
In State v. Caldwell, the Court of Appeals considered a conviction under the state's peeping tom statute. An issue of error preservation came up regarding character evidence. Caldwell argued that the trial court erred in allowing testimony that he preferred to look at younger boys into evidence as such testimony is improper character evidence under Rule 404, SCRE, as well as the case of State v...

California Supreme Court strikes down ban on same-sex marriage

Posted on May 15, 2008
A copy of the opinion, can be found here. This is a summary of a the court's holding: First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to designation of marriage will not deprive opposite-sex couples of any rights and not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties currently are imposed on married opposite-sex couples...

South Carolina to get another district judge?

Posted on May 15, 2008
That would be the case under the Federal Judgeship Act of 2008. The Bill is currently in the Senate Judiciary Committee. Lindsey Graham is a co-sponsor.

Light Blogging this week

Posted on May 15, 2008
I've been in the field interviewing witnesses. More appellate posts will be forthcoming!

SC Court of Appeals makes new law on Rule 59 and timeliness of an appeal

Posted on May 08, 2008
In Camp v. Camp, the South Carolina Court of Appeals offered another chapter in the book of practice under Rule 59(e). The case concerned a family court order requiring father to pay mother a certain amount of child's college expenses. After the order was entered, father filed the following motion for reconsideration:Please be advised that the defendant through his undersigned attorney will move before the Honorable David Sawyer to reconsider the ruling in his order dated July 26, 2006 and awarding [child] college expenses and costs...

Walt Wilkins nominated to be US Attorney for District of SC

Posted on May 08, 2008
Great choice by the President. Let's hope Walt is confirmed soon. No doubt he will serve with distinction.

SC Supreme Court reverses trial court decision excluding witnesses from Jack Sterling case

Posted on May 06, 2008
Yesterday, the State Supreme Court decided State v. Sterling. In this case, the State appealed from a Trial Court Order granting Sterling?s Motion to Exclude the Testimony of Four Witnesses. This case, of course, stems from the financial collapse of Carolina Investors and Home Gold Financial...

Charleston teen competent to stand trial in school bombing plot

Posted on May 05, 2008
WCBD has this story.

Fourth Circuit decides North Carolina campaign finance cases

Posted on May 02, 2008
Election Law Blog has the scoop on North Carolina Right to Life v. Leake.

Showdown over Fourth Circuit Nominees

Posted on May 02, 2008
From the Baltimore Sun:Storm clouds continue to gather in the Senate over federal judges. Republicans, eager to fill some key appeals court vacancies with conservatives before the end of President Bush's term are stepping up the pressure on Patrick Leahy, the chair of the Senate Judiciary Committee...

SC Supreme Court discusses timeliness of Rule 59 Motion

Posted on May 01, 2008
In USAA Property & Casualty Insurance Company v. Clegg, the Supreme Court of South Carolina dealt with a deadline to file a notice of appeal. In essence, the appellant alleged that the respondent?s notice of appeal was untimely because it was filed more than thirty days after written notice of the trial judge?s order...

SCOTUS decides Voter ID Case

Posted on April 30, 2008
This week, the United States Supreme Court decided whether a state can require a voter to present a photo ID before casting a ballot (Crawford v. Marion County). The law was challenged by the Democratic Party alleging that it substantially burden the right to vote...

South Carolina Court of Appeals reverses trial court order compelling disclosure of hospital peer review materials

Posted on April 25, 2008
In Wieters v. Bon-Secours, the State Court of Appeals considered an order compelling discovery in a defamation action. At base, a physician had his privileges suspended by the hospital, the hospital reported this action to the National Practitioner Databank, and the physician sued the hospital for defamation, alleging that the Databank report contained false information about him...

From the Judge-said-what files..........

Posted on April 25, 2008
Only South Carolina's Judge Ralph King Anderson, when deciding the scope of the discovery of peer review material, could have written this:"The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship...

SCOTUS holds that state law does not affect the enforcement of the Fourth Amendment

Posted on April 24, 2008
Yesterday the Supreme Court in Virginia v. Moore considered whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. The officers in the case stopped Moore because they heard over the police radio he was driving with a suspended license...

Could Fourth Circuit Nominees Steve Matthews and Robert Conrad be confirmed by Memorial Day?

Posted on April 23, 2008
Probably not. Under pressure from Minority Leader Mitch McConnell, Democratic leader Harry Reid has agreed to a plan to confirm three of President Bush's appellate court nominees by Memorial Day. The question is which ones? There is pressure to confirm Matthews and Conrad, but word is that the Dems plan to let these nominees hang out there...

Glen Everett Gibson murder trial begins in Greenville

Posted on April 22, 2008
The Greenville News has this story.

Breach of fiduciary duty issue not preserved for review in legal malpractice case

Posted on April 21, 2008
In Spence v. Wingate, the South Carolina Court of Appeals granted a grant of partial summary judgment in a legal malpractice claim. At base, the trial court had held that the law firm did not owe a fiduciary duty to the wife concerning her late husband?s life insurance policy...

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